Majola v Cricket South Africa and Others (J2762/12) [2013] ZALCJHB 214; [2013] 12 BLLR 1236 (LC) (29 August 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case No. J2762/12

In the matter between:

MONGEZI GERALD MAJOLA ..................................................................................Applicant

and

CRICKET SOUTH AFRICA ..........................................................................First Respondent

MINISTER OF SPORT AND RECREATION ...........................................Second Respondent

CHRIS NICHOLSON N.O. ...........................................................................Third Respondent

FREEMAN NOMVALO N.O. .....................................................................Fourth Respondent

ZOLISA ZWAKALA N.O. ..............................................................................Fifth Respondent

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA .....................Sixth Respondent

SASCOC .................................................................................................Seventh Respondent

KAREL TIP N.O. ........................................................................................Eighth Respondent

Heard: 19 and 25 March 2013

Delivered: 29 August 2013

Summary: Application for declaratory relief - reliance on right to fair labour practices in S23 of Constitution - failure to show statutory right arising from LRA - application dismissed.

VISAGIE, AJ

Introduction

[1] This is an application for declaratory relief. In his application, the applicant seeks an order declaring certain actions and/or decisions of the second to fifth respondents as unlawful, invalid and unfair. It is the applicant's case that those actions and/or decisions had led to the institution of disciplinary proceedings against the applicant, which resulted in the applicant’s

dismissal. The Court is requested to set aside the disciplinary proceedings if it finds that the actions and/or decisions of the

second to fifth respondents, which were allegedly unlawful, invalid and unfair, collectively lead to the institution of the disciplinary

proceedings.

[2] The applicant seeks substantive relief only against the first respondent and declaratory relief in respect of the validity of the actions and/or decisions of the second, third, fourth and fifth respondents. The applicant likewise seeks no substantive relief against the eighth respondent who was the chairperson of the disciplinary hearing. The sixth and seventh respondents were only cited by virtue of their possible interests in the proceedings and the relief that is sought in the proceedings.

Condonation application

[3] The application was initially set down for hearing on 19 March 2013. A day before the hearing, the second respondent filed an application for condonation seeking the Court to condone the late service of the second respondent’s answering affidavit and

tendering the wasted costs occasioned by the application for condonation.

[4] The applicant filed and served the notice of motion on 15 October 2012. The second respondent’s notice to oppose the application was served and filed on 11 November 2012. The second respondent's answering affidavit was filed with the Court on 24 December 2012 but was not served on the applicant at that time. Mr Ngoetjana, an attorney at the State Attorney offices in Pretoria, stated in the affidavit supporting the application for condonation that he was surprised when, after serving the second respondent’s

heads of argument on 12 March 2013, he received a telephone call from the applicant’s attorney on 13 March 2013, who informed him that the applicant was of the impression that the second respondent was not opposing the application in lieu of the fact that no answering affidavit from the second respondent was received by the applicant. It was only then that Mr Ngoetjana discovered that the second respondent’s answering affidavit was filed with this Court but not served on the applicant.

[5] The applicant did not oppose the condonation application but requested that the matter be stood down until 25 March 2013 in order for the applicant to consider replying to the second respondent's answering affidavit. Counsel for the first respondent did not object to the request for a postponement on the basis that the parties agree to a date that all parties would be available. In light of the fact that the condonation application was not opposed and that it would only be fair to allow the applicant an opportunity to consider whether he wanted to reply to the second respondent's answering affidavit, the condonation application was

granted and the matter was postponed by agreement between the parties to 25 March 2013 on the basis that the second respondent pay the wasted costs occasioned by the condonation application.

Factual background

[6] The background facts of the matter are fairly common cause.

[7] The applicant was employed as the Chief Executive Officer of the first respondent from 1 January 2001 until he was dismissed on 19 October 2012 following a disciplinary enquiry instituted by the first respondent. The board of directors of the first respondent (the "first respondent's board") resolved on 17 and 30 March 2012 to hold a disciplinary enquiry into allegations of misconduct levelled against the applicant and on 15 May 2012, charges were served on the applicant. From about the end of September 2012 through October 2012, the parties were engaged in the disciplinary enquiry. There were a number of procedural steps that were dealt with at the commencement of the disciplinary enquiry. This included, amongst others, a special plea raised by the applicant, which was dismissed by the disciplinary chairperson as well as an application for the postponement of the disciplinary enquiry pending an application to this Court to intervene. The application for postponement was also dismissed by the chairperson who gave his reasons on 13 October 2012. In light of the refusal to grant the postponement, the applicant decided not to participate any further in the disciplinary enquiry, which continued in his absence and which resulted in a finding which was provided by the chairperson on 19 October 2012. The finding of the chairperson was for the applicant to be summarily dismissed.

[8] In these proceedings, the applicant relies mainly on the events that preceded the institution of the disciplinary proceedings against him in support of his application and the relief that he seeks in his notice of motion.

[9] In early August 2010, the first respondent's board established a review committee (“the Khan committee”, Mr A K Khan was the Vice President of the first respondent at the time and was also the first member appointed to the committee) to investigate allegations regarding the unauthorised payment of bonuses as well as the non-disclosure of the payment of bonuses to certain of its staff, including the applicant, by the Indian Premier League ("IPL") and the International Cricket Council ("ICC") after these two bodies separately held tournaments in South Africa in 2009. The Khan committee made a number of recommendations, amongst them, that the applicant “be formerly cautioned to ensure that the payments received by him are authorised by the appropriate committee or body within CSA and that all amounts received by him from sources other than CSA be promptly and comprehensively reported to REMCO.” The Khan committee also recommended that the bonuses “paid to all staff, including [the applicant] and McIntosh be ratified”. At a meeting of the first respondent’s board on 19 November 2010, the first respondent's board endorsed the Khan committee's findings and its recommendations.

[10] In April 2011, the first respondent’s board instructed KPMG, an independent auditing firm, to conduct a forensic investigation into the payment of bonuses to employees of first respondent and the travel and related expenditure of the applicant. The first respondent invited the South African Sports Confederation and Olympic Committee (“SASCOC”) to oversee the process. After finalising its investigation, KPMG provided its report to the first respondent on 5 September 2011. With regard to the payment of bonuses, the report identified four instances of possible irregular conduct by the applicant relating to his failure to disclose. The report recommended that the conduct was possibly in contravention of the Companies Act and the fiduciary duties of directors and should therefore be referred for legal advice to determine what appropriate action should be taken. The report also made recommendations with regard to the travel and related expenditure as well as the repayment of these expenses. What followed was that the various parties independently sought opinions from three senior counsel. SASCOC sought an opinion from Advocate Bam SC in August 2011. Dr Nyoka, the President of the first respondent at the time, instructed Advocate Paul Pretorius SC on 19 August 2011 to provide an opinion, and the applicant himself sought an opinion from Advocate VS Notshe SC.

[11] At the meeting of the first respondent’s board on 19 and 20 August 2011, the first respondent's board considered the three opinions. Advocate Bam SC was present at the meeting and he presented his opinion to the first respondent's board. Advocate Bam SC concluded that in his opinion Sections 234 and 235 of the Companies Act were breached and there was a breach of fiduciary

duties owed to the first respondent “arising from the manner in which the IPL bonuses were determined and paid out and the

non-disclosure of the IPL bonuses”. The minute of the meeting records the fact that the opinion from Advocate Pretorius SC was sought by Dr Nyoka in his personal capacity. Advocate Pretorius SC’s opinion stated that the allegations as they appear in the KPMG report against the applicant were serious and his failure to disclose all matters relating to the bonuses was a breach of the relevant provisions of the Companies Act. He recommended that the first respondent's board should call the applicant to a properly constituted disciplinary enquiry chaired by an independent chairperson. The minute also records that Advocate Notsche SC was independently asked by the applicant to provide an opinion and was also invited to address the first respondent's board and to deliver to it his views. In Advocate Notsche SC’s view, the first respondent's board had no power to appoint KPMG to conduct the investigation without a rescission of its earlier decision and the provisions of Sections 234 and 237 of the Companies Act had no application.

[12] The first respondent's board resolved, amongst others, that the applicant should be severely reprimanded. It was recorded that the first respondent's board “agreed that the matter have reached conclusion and was closed”. It was further recorded in the minute that Mr Reddy, the SASCOC representative at that board meeting, requested that the first respondent provide SASCOC with a full report on the matter and the first respondent agreed to do so.

[13] In a letter dated 3 September 2011, SASCOC gave feedback to the second respondent on what had transpired at the aforementioned board meeting. In this letter, SASCOC informed the second respondent that it was satisfied with the outcome of the board meeting and recommended that the matter be treated as closed.

[14] On 15 October 2011, the members of the first respondent passed a vote of no confidence in Dr Nyoka and relieved him of his positions. The following day, the second respondent appointed a Ministerial Committee with members comprising the third, fourth and fifth respondents to, amongst others, investigate why the first respondent at its board meeting of 19 August 2011 failed “to adhere to certain recommendations” of the KPMG report and the advice that was given by the two senior counsel and failed to call the applicant to a disciplinary enquiry. The third respondent, Judge Nicholson, was appointed by the second respondent to chair the enquiry of the Ministerial Committee. In the Ministerial Committee’s report of 7 March 2012, it stated that the Ministerial Committee was appointed in accordance with Treasury Regulation 20, issued in terms of the Public Finance Management Act, 19991 and Section 13(5)(a) of the National Sports and Recreation Act, 1998.2 The procedures followed by the Ministerial Committee, as stated in its report, were ‘informal, flexible and non-sectorial and which [permitted] for the maximum participation by interested parties.’

[15] The applicant participated in the proceedings of the Ministerial Committee by providing written and oral submissions. The Ministerial Committee found that ‘there was maladministration in CSA in relation to payment of bonuses to officials in respect of the IPL and Champions Trophy and that this was in contravention of Sections 234-6 of the Companies Act.’ The Ministerial Committee also believed that ‘there was maladministration with regard to incurring of travel expenses, which were beyond [the applicant's] duties for CSA on his own behalf and on behalf of his wife and children.’ The Ministerial Committee recommended, amongst others, that ‘the same remedies as those mentioned by certain of the counsel… mainly to subject Majola to a disciplinary enquiry, on the bonus payments and travel expenses issues, prosecuted and chaired by independent senior advocates, chosen by the chairperson of the Society of Advocates.’

[16] The first respondent's board, at its meeting of 17 March 2012, discussed the contents of the Ministerial Committee’s report and the recommendation contained therein. The first respondent's board resolved that the Ministerial Committee’s recommendation “be adopted by the board in totality" and that the applicant "be suspended from Cricket South Africa with immediate effect pending a disciplinary enquiry.” At a subsequent meeting of the first respondent's board on 30 March 2012, the first respondent's board dealt with the Ministerial Committee’s report further and recorded in the minute that the report “had

been accepted “in principle”, implying that the board's options would be open to dealing with the report's recommendation in the best interest of CSA but that, should consultation be required, the board would do so with whomever was necessary.”

[17] On 15 May 2012, the applicant received the notice to attend the disciplinary enquiry containing various charges.

Submissions on behalf of the applicant

[18] The applicant’s main contention was that the disciplinary enquiry instituted against him by the first respondent violated his constitutional right to fair labour practices and was accordingly unlawful and invalid. He seeks to have the disciplinary enquiry set aside by obtaining declaratory relief relating to the alleged unlawfulness and invalidity of those actions and/or decisions

of the second to fifth respondents that collectively led to the institution of the disciplinary enquiry.

[19] Advocate Soni SC, who acted on behalf of the applicant, submitted that the first issue that the Court is called upon to consider is whether the interference by the second respondent was lawful, valid, fair and/or permissible. Advocate Soni contended that the second respondent did not have the power to appoint a committee to determine whether the services of a person in the position that the applicant held at the time should be terminated. Advocate Soni stated that there were a number of reasons for this contention. First, the power to set up a commission is given to the sixth respondent. Second, the Act on a proper interpretation does not permit the second respondent to appoint a committee of enquiry: Section 13(5)(a)3 simply allows the second respondent to refer a dispute to mediation or to issue directives. Third, even if the Act empowers the second respondent to appoint a committee of enquiry, that power may only be exercised subject to Section 13(5)(b), which expressly precludes the second respondent from interfering in matters relating to the termination of services of executive members of a sports body, such as the applicant, who was the CEO of the first respondent.

[20] Advocate Soni went further and stated that, even if the second respondent had the power to appoint the Ministerial Committee, the second respondent was not entitled to include, in the terms of reference of the Ministerial Committee, the power to recommend that steps be taken against the applicant that would lead to the termination of the applicant's services with the first respondent.

[21] Advocate Soni argued that it was incumbent on the ministerial committee when it was appointed by the second respondent to first determine if it was entitled to make the recommendations requested of it by the second respondent. The Ministerial Committee's report makes it clear, according to Advocate Soni, that it did not determine whether it was entitled to do so and, as a result, the recommendations that the Ministerial Committee made in respect of the applicant were beyond the Ministerial Committee's powers and were consequently invalid. Advocate Soni contended that the failure of the members of the committee to explain if they had considered the ambit of their powers while they had an opportunity to do so in these proceedings is also significant. In the result, Advocate Soni concluded that both the second respondent and the committee exceeded their powers in doing so. Advocate Soni stated that they acted in violation of Section 33 of the Constitution, consequently acted unconstitutionally and as a result there was no basis for the first respondent which had already, by that time, twice regarded the questions of the complaints against the applicant as having been resolved, to reconsider them. Advocate Soni’s main contention in this regard was that the first respondent was not entitled, in order to comply with the outcome of the invalid processes and decisions, to institute disciplinary proceedings against the applicant and also to rely on those invalid processes and decisions to reconsider the complaints against the applicant.

[22] Advocate Soni submitted that, from the outset, the first respondent's board was of the view that the appointment of the Ministerial Committee was unlawful. Despite this view, the first respondent's board participated in the proceedings and also instructed the applicant to do so. According to Advocate Soni, the first respondent's board even held this view after the ministerial committee had made its recommendations and notwithstanding, the first respondent's board entered into a formal agreement with the second respondent which provided that if the first respondent's board did not implement the recommendations of the Ministerial Committee

against the applicant that the first respondent's board would be stripped of its recognition. Advocate Soni contended that the first respondent had an opportunity to address these allegations in an answering affidavit and, instead of doing so, it only filed an affidavit from its acting CEO who had no personal knowledge of the matters raised in the applicant’s founding affidavit. According to Advocate Soni, the allegations made in the affidavit of the CEO on behalf of the first respondent constituted hearsay and should be accorded no weight.

[23] Advocate Soni also contended that in light of the first respondent's board's initial view about the lawfulness of the Ministerial Committee and in light of its previous decisions relating to the conduct of the applicant, it was for the first respondent's board to challenge the unlawful processes of the second to fifth respondents because the second respondent was exercising statutory powers. Advocate Soni's contention was that where an employer is aware or believes that the process that culminates in it instituting disciplinary proceedings against one of its employees was not lawful, its decisions to launch such proceedings were invalid and also unfair.

[24] Advocate Soni argued that it was highly unfair, if not unlawful, for the applicant to be subjected to a disciplinary enquiry in order that the first respondent could continue to receive its recognition by the second respondent as the body representing cricket in South Africa. Advocate Soni stated that in so doing, the actions of the first respondent constituted a violation of the

applicant's constitutional right to fair labour practices, which includes the right not to be unfairly subjected to a disciplinary

enquiry and/or to be dismissed unfairly. In these circumstances, Advocate Soni contended that the Court was entitled to declare the impugned processes and decisions unlawful and invalid.

Submissions on behalf of the first respondent

[25] Advocate Redding SC, on behalf of the first respondent, stated that the first issue to be determined by this Court is whether the applicant’s application is moot. Advocate Redding submitted that there is no challenge to the fairness or lawfulness of the applicant’s dismissal and a Court will be reluctant to issue declaratory relief where there is no live issue at stake. In the absence of a challenge to his dismissal, according to Advocate Redding, it is unclear what purpose will be served in “setting aside” disciplinary proceedings which took place sometime in the past. Advocate Redding submitted that it is trite law that the relief of a declaration of rights is discretionary in nature and will not be afforded where little or no purpose will be served if the court were to make such declaration. In the result, Advocate Redding stated that the applicant's application is an expensive and redundant exercise which has no practical purpose at all and should accordingly be dismissed with costs.

[26] Advocate Redding contended that insofar as the applicant argued that his constitutional right to fair labour practices had been violated by the first respondent when it held a disciplinary enquiry in order to comply with alleged unlawful and invalid actions or decisions of the second respondent and the Ministerial Committee, it is now firmly established that the constitutional right to fair labour practices must be asserted through the labour legislation promulgated to give effect to the constitutional right and not directly from the Constitution itself. Advocate Redding went further and stated that the applicant’s general reliance on a violation of his right to fair labour practices without specifying precisely which right is implicated is a fatal problem in his application. The applicant failed to rely on any provision in the labour legislation promulgated to give effect to the constitutional right, according to Advocate Redding. In addition, if the applicant was relying on the unfair labour practice regime set out in Section 186 of the Labour Relations Act,4 Advocate Redding submitted that there is no pertinent reliance on an unfair labour practice and no allegations are set out which brings the first respondent’s conduct within the LRA definition of an unfair labour practice. Advocate Redding stated that in any event the LRA provides that the relevant bargaining council or the CCMA, as the case may be, has exclusive jurisdiction to consider such a dispute and the Labour Court has no jurisdiction to do so. In the result, according to Advocate Redding, the applicant’s reliance on the violation of his constitutional right to fair labour practices ought to be rejected and his application dismissed with costs.

[27] With regard to the applicant’s contention relating to the alleged unlawfulness and invalidity of the second respondent and the Ministerial Committee’s actions and decisions, Advocate Redding submitted that the Labour Court lacked inherent power to declare the administrative actions of Ministers of State and investigative committees to be unlawful and invalid unless this is incidental to the exercise of a power which the Labour Court has under the LRA.

[28] Advocate Redding also submitted that the underlying legal basis for stating that the decision of the first respondent to hold a disciplinary enquiry was unlawful and invalid is not clear from the applicant’s case. Advocate Redding stated that the applicant does not aver that the first respondent breached a contractual duty which it owed him, whether under his contract of employment or otherwise. Advocate Redding submitted that the applicant did not allege that the first respondent wrongfully and unlawfully breached a contract nor did he allege that first respondent wrongfully or unlawfully committed a delict nor does he say that the first respondent breached a particular statutory duty which was owed to him. According to Advocate Redding, there is no suggestion that when the first respondent’s board resolved to hold a disciplinary enquiry that they acted ultra vires the first respondent’s Memorandum and Articles of Association or contrary to them. Advocate Redding stated that the first respondent is a non-profit company governed by the provisions of the Companies Act and its powers are to be found in the company's Memorandum and Articles of Association. Advocate Redding argued that the decision of the first respondent to hold a disciplinary enquiry in respect of the allegations against the applicant fell within the first respondent's powers as a company and did not breach any law or any agreement which prevented it from doing so and therefore the decision was not unlawful or invalid.

[29] Advocate Redding further argued that it was also unclear how the applicant can contend that the first respondent is affected by the invalidity of the second respondent's decision without laying a basis to show that the first respondent was legally bound to adopt the Ministerial Committee’s recommendation. The first respondent could choose to do so or not, according to Advocate

Redding.

[30] Advocate Redding also submitted that the appointment of the Ministerial Committee is not the issuing of a directive by the Minister. It is simply the instigation of an investigative process. As such, therefore, Advocate Redding argued that there is no reason why the appointment of a committee to investigate issues relating to cricket lies outside of the powers of the second respondent generally. Advocate Redding submitted that there is no reason why the second respondent is not entitled to appoint a committee to investigate an issue of concern prior to issuing any directives within the meaning of Section 13 of the Act.

[31] Advocate Redding argued that what the applicant is seeking to do is to bring the decision of the second respondent under review and in order to review a decision of an official such as the second respondent, a party is obliged to rely upon the provisions of the Promotion of Administrative Justice Act (2000) (“PAJA”).5 Advocate Reddy pointed out that Section 7(1) of PAJA provides that any proceedings for a judicial review must be instituted without unreasonable delay and not later than 180 days after the applicant becomes aware of the administrative action. Advocate Redding stated that in this case the administrative action was the second respondent's decision to appoint a Ministerial Committee. According to Advocate Redding, the applicant clearly abandoned any complaint that he might have had to the lawfulness of the Ministerial Committee when he participated in its proceedings. Advocate Redding submitted that it is inappropriate for a court belatedly to seek to set aside the act of the second respondent and the time requirements for review cannot be side-stepped by way of a collateral challenge to the second respondent's decision nor by applying for a declaration, rather than judicial review. In the absence of an application for condonation for the belated challenge to the second respondent's decision and any reasons advanced in support of such condonation, Advocate Redding submitted that the Court should dismiss the entire application with costs.

Submissions on behalf of the second respondent

[32] Advocate Motimele SC, who argued on behalf of the second respondent, submitted that to the extent that the applicant seeks an order declaring the decision of the second respondent to appoint the Ministerial Committee of enquiry to investigate matters relating to the first respondent unlawful and invalid, the applicant must show that there is an employer and employment relationship governed by the LRA between him and the second respondent in order for this Court to have jurisdiction to hear the application. Advocate Motimele submitted that the applicant must demonstrate that the second respondent owed him any duty relating to fair labour practices as provided for in Section 23 of the Constitution or any other legislation. Advocate Motimele contended that it is only the High Court that has jurisdiction to review the decision taken by the second respondent and the Labour Court does not have jurisdiction to enquire into a challenge that the act of appointing the Ministerial Committee by the second respondent had been invalid and unlawful. Elaborating on the second point, Advocate Motimele indicated that because there is no employer/employee relationship between the second respondent and the applicant, there can be no suggestion that the applicant's right to fair labour practices as set out in Section 23 of the Constitution having been breached by the second respondent.

[33] Advocate Motimele also argued that the applicant lacked locus standi with regard to the appointment of the Ministerial Committee by the second respondent. Advocate Motimele contended that the terms of reference of the Ministerial Committee appointed by the second respondent does not in any way require the applicant to do anything, the applicant is not mentioned in the terms of reference at all and, but for being employed by the first respondent, applicant had no direct interest in the appointment of the Ministerial Committee. Advocate Motimele argued that even if the Court was to find that such employment constituted direct interest by the applicant, that such interest was not substantial. In the result, because the applicant had no direct and substantial interest in prayers 1 to 5 of the notice of motion,6 the applicant lacked locus standi to request the relief in prayers 1 to 5 according to Advocate Motimele.

[34] Advocate Motimele also argued that the declaratory order sought by the applicant had no material advantage nor is there any tangible benefit to be gained from the relief. In support of this contention by Advocate Motimele, he stated that firstly, a declaratory order is not appropriate to deal with events that happened in the past. Secondly, Advocate Motimele said that the jurisdiction of the Court cannot be exercised to get legal advice, answer abstract, academic or hypothetical questions which have no tangible benefits to the applicant. Lastly, Advocate Motimele submitted that prayers 1 to 5 of the notice of motion are, accordingly, not competent and the application should be dismissed with costs.

[35] Advocate Motimele also argued that on a proper interpretation of Section 13(5) of the Act, the qualification in 13(5)(b) only finds application where the intervention relates to “… the dispute or mismanagement in question”, which have been referred to the Sports Confederation for resolution. Section 13(5)(b) does not apply where the second respondent decides to intervene in any “… matter in sport or recreation that is likely to bring a sport or recreation activity into disrepute.” Advocate Motimele stated that due to the fact that the second respondent's intervention related to the first respondent allegedly bringing the sport of cricket into disrepute, the qualification in Section 13(5)(b) does not apply to the second respondent's intervention. In addition, according to Advocate Motimele, it is only where SASCOC is seized with a matter that the second respondent must apply deference because it may be resolved by the sports body. Advocate Motimele indicated that SASCOC’s letter was dated 3 September 2011 and accordingly SASCOC was functus officio because it was doing nothing to resolve the matter when the second respondent appointed the Ministerial Committee in November 2011. Advocate Motimele also contended that an “intervention” as referred to in Section 13(5)(b)(i) must be distinguished from “interference” as referred to in Section 13(5)(b)(ii). Lastly, Advocate Motimele indicated that the second respondent was also empowered to intervene by reason of the resolution of the International Cricket Council of 11 November 2011.7

Analysis and legal principles

[36] In light of the conclusion which I have reached, it is not necessary for me to deal with all the legal arguments and points raised by counsel. I am indebted, however, to counsel for their in-depth and comprehensive arguments on the points. Some of the

detailed arguments in respect of some of the issues may be interesting and persuasive. However, I refrain from commenting thereon. I am sure that they will remain for debate in future litigation, should the need arise.

[37] This Court has the power in terms of section 158(1)(a)(v) of the LRA to make declaratory orders. In the case of National Employers' Association of South Africa v Minister of Labour,8 Van Niekerk J stated as follows:

‘Section 158(1)(a)(v) empowers this Court to make declaratory orders. Neither the LRA nor the Rules of this Court prescribe the circumstances in which an order may be made. Section 19(1)(a)(iii) of the Supreme Court Act 59 of 1959, entitles the High Court, in its discretion, and at the instance of an interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential on the termination. The granting of a declaratory order is dependent on the judicial exercise by the Court of its discretion, with due regard to the circumstances of the matter before it.9 Section 19(1) of the Supreme Court Act establishes a two-stage approach - the first leg of the enquiry is concerned with whether the applicant has an interest in an existing, future or a contingent right or obligation; the second is whether or not the order should be granted.

Harms, in Civil Procedure in the Superior Courts referring to Director of Public Prosecutions v Mohammed N.O. 2003 4 SA 1 (CC), suggests that a declaratory order is not appropriate if there are other specific statutory remedies available (at A26). In the present instance, the powers conferred on this Court by Section 158(1) (g) afford the applicants a right of recourse. Whether the existence of an alternative statutory remedy is necessarily fatal to an application for a declaratory order appears to be open to some doubt. Herbstein and Van Winsen observe that the fact that remedies other than a declaration of rights are available is a consideration that the Court must take into account in exercising a discretion as to whether or not to make a declaration of rights (see page 1437). On either account, it is clear that the availability of alternative remedies ought properly to be taken into account in the exercise of the discretion as to whether or not to grant a declaratory order [Trinity Asset Management (Pty) Ltd v Investec Bank Limited 2009 4 SA 89 (SCA) at para [40] [also reported at [2009] All SA 449 (SCA - ed).’

[38] The first aspect of the aforementioned requirement to consider is whether the applicant has demonstrated an interest in an existing, future or contingent right or obligation. As I understand it, it is the applicant's contention that the disciplinary enquiry instituted by the first respondent against him and which resulted in the termination of his employment allegedly violated his constitutional right to fair labour practices. The applicant's contention is that because the disciplinary enquiry came about as a result of the alleged unlawful and invalid actions and decisions of the second to fifth respondents, the holding of the disciplinary

enquiry, in the circumstances, was unfair.

[39] It is common cause that the applicant relies directly on his right to fair labour practices as set out in Section 23(1) of the Constitution. The applicant's case is therefore not based on any one or more of the grounds listed in Section 186(2) of the LRA,10 the labour legislation promulgated to give effect to the constitutional right the applicant is relying on.

[40] In De Klerk v Cape Union Mart International (Pty) Ltd,11 Steenkamp J, when faced with an application who relied directly on the right to fair labour practices in Section 23 of the Constitution, said the following:

‘As set out above, the applicant relies directly on the right to fair labour practices enshrined in Section 23 of the Constitution.

As the applicant herself acknowledges, national legislation - specifically the LRA - has been enacted to regulate and to give effect to the right to fair labour practices. Where legislation has been enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging the legislation in question.

In Mazibuko and Another v City of Johannesburg and Others 2010 (4) SA 1 (CC); [2010] 3 BCLR 239 (CC) at para 73, the Constitutional Court discussed the principle of constitutional subsidiarity and reiterated that:

“This Court has repeatedly held that where legislation has been enacted to give effect to a right, a litigant should rely on that legislation in order to give effect to the right or alternatively challenge the legislation as being inconsistent with the Constitution.”

This dictum is consistent with, inter alia, the earlier statement by Ngcobo J in Minister of Health and Another N.O. v New Clicks SA (Pty) Ltd and Others: (footnote omitted)

“[434] In NAPTOSA, the Cape of Good Hope High Court had occasion to consider whether in the context of the Labour Relations Act (LRA) it is appropriate to grant relief directly under s23(1) of the Constitution without a complaint that the LRA was constitutionally deficient in the remedies that it provides. The Court held that it could not conceive that it is permissible for an applicant, save by attacking the constitutionality of the LRA, to go beyond the regulatory framework which it establishes. In reaching this conclusion, the High Court was concerned that were the practice to be permitted, it would encourage the development of two parallel streams of labour law jurisprudence, one under the LRA and the other under s23(1). It considered this to "be singularly inappropriate.”

[435] In NEHAWU, this Court considered NAPTOSA but refrained from expressing any opinion on it as it found that it had no application in that case. In Ingledew, again this Court referred to NAPTOSA and observed, that together with other cases referred to in Ingledew, it “cast doubt on the correctness of the proposition that a litigant can rely upon the Constitution, where there is a statutory provision dealing with the matter without challenging the constitutionality of the provision concerned.”

[436] In my view, there is considerable force in the view expressed in NAPTOSA. Our Constitution contemplates a single system of law which is shaped by the Constitution. To rely directly on s 33(1) of the Constitution and on common law when PAJA, which was enacted to give effect to s33 is applicable, is in my view, inappropriate. It will encourage the development of two parallel systems of law, one under PAJA and another under s33 and the common law. Yet this Court has held that there are not two systems of law regulating administrative action - the common law and the Constitution – ‘but only one system of law grounded in the Constitution.’ And in Bato Star we underscored this, holding that ‘the Courts' power to review administrative action no longer flows directly from the common law but from PAJA and the Constitution itself.’

[437] Where, as here, the Constitution requires Parliament to enact legislation to give effect to the constitutional rights guaranteed in the Constitution, and Parliament enacts such legislation, it will ordinarily be impermissible for a litigant to found a cause of action directly on the Constitution without alleging that the statute in question is deficient in the remedies that it provides. Legislation enacted by Parliament to give effect to a constitutional right ought not to be ignored. And where a litigant founds a cause of action on such legislation, it is equally impermissible for a court to bypass the legislation and to decide the matter on the basis of the constitutional provision that is being given effect to by the legislation in question.’

And specifically in the context of the LRA, O'Regan J stated in SANDU v Minister of Defence and Others: (footnote omitted)

“Accordingly, a litigant who seeks to assert his or her right to engage in collective bargaining under s 23(5) should in the first place base his or her case on any legislation enacted to regulate the right, not on s 23(5). If the legislation is wanting in its protection of the s 23(5) right in the litigant's view, then that legislation should be challenged constitutionally. To permit the litigant to ignore the legislation and rely directly on the constitutional provision would be to fail to recognise the important task conferred upon the legislature by the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights.”’

[41] The applicant has not relied on any of the grounds listed in Section 186(2) of the LRA and has therefore not shown any existing right arising from the LRA in which the applicant has an interest. The right to fair labour practices must be found in the LRA because it is this legislation that regulates and gives effect to the right to fair labour practices as set out in Section 23 of the Constitution. As Advocate Redding rightly pointed out, even if it were possible for the applicant to bring the first respondent's conduct in instituting the disciplinary enquiry within the ambit of Section 186(2) of the LRA, the Labour Court has no jurisdiction to entertain any dispute arising out of Section 186(2) because the legislator has provided exclusive jurisdiction to deal with such disputes to the CCMA or any relevant bargaining council.12 This Court has declined to give a declaratory order where the determination of the underlying dispute is one that falls outside its jurisdiction.13

[42] In my view, based on the above, the applicant has failed to demonstrate an interest in an existing, future or a contingent right or obligation.

[43] Even if I am wrong in coming to the conclusion that the applicant has failed to meet the first hurdle of the requirement, I am in any event disinclined to grant the declaratory relief in light of all the facts and circumstances of the case and for the reasons that follow.

[44] If the applicant was of the view that the disciplinary enquiry was unfair, for whatever reason, alternative remedies were open to the applicant to challenge the substantive and/or procedural fairness of the disciplinary enquiry in terms of the relevant provisions of the LRA. Even prior to the commencement or during the disciplinary proceedings, the applicant had an opportunity to approach this Court to intervene if the applicant was able to show exceptional circumstances for this Court to do so.14 The applicant elected not to do so at the time of the commencement of the disciplinary enquiry nor has the applicant instituted any proceedings subsequent to the conclusion of the disciplinary enquiry to challenge the outcome thereof. The existence of alternative remedies, although not fatal to the granting of declaratory relief, is a factor to be taken into account for the exercise of the discretion as stated in National Employers Association of South Africa.15

[45] It is trite law that the Court will decline to grant a declarator if it regards the questions raised before it as hypothetical, abstract and academic16. As I have indicated above, the applicant has decided not to challenge his dismissal and in the absence of the challenge to the lawfulness or fairness thereof, I do not see any purpose that will be served by the declaratory relief sought by the applicant.

[46] I am further not persuaded that the first respondent's board was precluded from instituting the disciplinary enquiry whether the decision to do so was based on the recommendations of the Ministerial Committee irrespective of its legal status. The applicant has not contended in these proceedings that the first respondent acted ultra vires its Memorandum of Association or contrary to it nor has the applicant laid any other foundation to show that by resolving to institute the disciplinary enquiry, the first respondent acted contrary to a duty owed to the applicant whether founded in contract or any other basis in law. Under these circumstances, I cannot understand how the decision of the first respondent to institute disciplinary

proceedings against the applicant could be construed to have been unlawful or invalid. As pointed out, even if there was some basis for the applicant to challenge the decision of the first respondent to hold a disciplinary enquiry, he should have done so at the time when the disciplinary enquiry was instituted (if he was able to meet the requirements of Booysen17) or he could have challenged the lawfulness and the fairness of the disciplinary hearing, in terms of the provisions of the LRA, after its completion and the outcome was communicated to him. He has done neither. In these circumstances, I can see no tangible benefit or material advantage to be gained by the applicant from the relief he is seeking in these proceedings.

[47] For the above reasons, therefore, the applicant's application is dismissed.

Costs

[48] I first deal with the costs for the postponement. As I have indicated above, the condonation application was not opposed and Advocate Motimele conceded that the second respondent should be responsible for the costs occasioned by the condonation application. When I put it to Advocate Motimele that it should also include the costs of the postponement, Advocate Motimele held on to the position that it should only relate to the condonation application. In my view, had it not been for the condonation application, there would not have been a postponement. I can, therefore, see no reason why the second respondent should not be responsible for the costs occasioned by the condonation application and the postponement.

[49] In this matter, the applicants as well as the first and second respondents were represented by senior counsel. The applicant's application has failed and I can see no reason why the first and second respondents should not be awarded costs.

Order

[50] I, therefore, make the following order:

50.1. The application is dismissed;

50.2. The second respondent is to pay the costs of the applicant and first respondent occasioned by the condonation application of the second respondent and the resultant postponement of the matter on 19 March 2013;

50.3. Applicant is to pay the costs of the first and second respondents.

______________

Visagie, AJ

Acting Judge of the Labour Court

APPEARANCES

For Applicant: Advocate Vas Soni SC

Instructed by: Knowles Hussain Lindsay Inc.

For First Respondent: Advocate AIS Redding SC

Instructed by: Cliffe Dekker Hofmeyr Inc.

For Second Respondent: Advocate M Motimele SC

Instructed by: The State Attorney

1Act No. 1 of 1999.

2Act No. 110 of 1998 ("the Act").

3Section 13(5) of the Act states the following: ‘13. Dispute Resolution 5(a) Subject to paragraph (b), the Minister may, after consultation with the relevant MEC, if applicable, intervene - (i) in any dispute, alleged mismanagement, or any other related matter in sport or recreation that is likely to bring a sport or recreation

activity into disrepute; or (ii) in any non-compliance with guidelines or policies issued in terms of Section 13A or any measures taken to protect or advance persons or categories of persons, disadvantaged by unfair discrimination as contemplated in Section 9(2) of the Constitution, by referring the matter for mediation or issuing a directive, as the case may be. (b) The Minister may not - (i) intervene if the dispute or mismanagement in question has been referred to the Sports Confederation for resolution, unless the Sports Confederation fails to resolve such dispute within a reasonable time; and (ii) interfere in matters relating to the selection of teams, administration of sport and appointment of, or termination of the service of, the executive members of the sport or recreation Body. (c) If a national federation fails to adhere to a decision of the mediator or directive issued by the Minister, as referred to in paragraph (a), the Minister may - (i) direct Sport and Recreation South Africa to refrain from funding such federation; (ii) notify the national federation, in writing, that it will not be recognised by Sport and Recreation South Africa; and (iii) publish his/her decision as contemplated in sub-paragraphs (i) and (ii) in the Gazette.’

3Section 13(5) of the Act states the following:

‘13. Dispute Resolution

5(a) Subject to paragraph (b), the Minister may, after consultation with the relevant MEC, if applicable, intervene - (i) in any dispute, alleged mismanagement, or any other related matter in sport or recreation that is likely to bring a sport or recreation

activity into disrepute; or (ii) in any non-compliance with guidelines or policies issued in terms of Section 13A or any measures taken to protect or advance persons or categories of persons, disadvantaged by unfair discrimination as contemplated in Section 9(2) of the Constitution, by referring the matter for mediation or issuing a directive, as the case may be.

(b) The Minister may not - (i) intervene if the dispute or mismanagement in question has been referred to the Sports Confederation for resolution, unless the Sports Confederation fails to resolve such dispute within a reasonable time; and (ii) interfere in matters relating to the selection of teams, administration of sport and appointment of, or termination of the service of, the executive members of the sport or recreation Body.

(c) If a national federation fails to adhere to a decision of the mediator or directive issued by the Minister, as referred to in paragraph (a), the Minister may - (i) direct Sport and Recreation South Africa to refrain from funding such federation; (ii) notify the national federation, in writing, that it will not be recognised by Sport and Recreation South Africa; and (iii) publish his/her decision as contemplated in sub-paragraphs (i) and (ii) in the Gazette.’

4Act No. 66 of 1995 (“LRA”).

5Act No. 3 of 2000.

6Prayers 1 to 5 mainly seeks to declare the appointment of, and investigation by, the ministerial committee of enquiry as unlawful and invalid, alternatively to declare as invalid, unlawful and unfair the investigation by the ministerial committee and a to declare the recommendation of the ministerial committee's enquiry that a disciplinary be held against the applicant as a violation of the applicant's right to fair labour practices.

7On 11 November 2011, the ICC sent a notice to all its members headed "Regulations relating to the Independence of Member Board", and which stated in paragraph 2 of the third page that, "Naturally, a government (or any office thereof) would also not be prevented from investigating the affairs of a Member Board in order to ascertain whether any criminal offence has been committed, including fraud, dereliction of directors' duties (including fiduciary duties) or contravention of any relevant legislation. Similarly, there may be circumstances where a government (or any ministry thereof) rightfully seeks to intervene in the event that a Member Board is dysfunctional. The ICC Governance Review Committee believes that this is a question of accountability, not interference."

8[ 2012] 2 BLLR 198 (LC) at paras 17-18.

9See Farlam, Fickhardt and Van Loggenberg, Erasmus Superior Court Practice (Juta) at A1-34.

10Section 186(2) of the LRA defines unfair labour practice as meaning any unfair act or omission that arises between an employer and employee involving (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of any employee or relating to the provision of any benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.

11(2012) 33 ILJ 2887 (LC) at paras 23 to 27.

12Save that the director of the CCMA has a right in terms of Section 186(6) to refer a dispute to the Labour Court under certain circumstances.

13SACWU v Engen Petroleum Limited and Another [1999] 1 BLLR 37 (LC) at para 3 where the court determined that it could not provide a declaratory order because the dispute concerned the entitlement to severance pay and the court did not have jurisdiction because such disputes must be referred to arbitration unless the court was also adjudicating a dismissal for operational requirements. (See also University of the North v Franks and Others [2002] 8 BLLR 701 (LAC)).

14Booysen v Minister of Safety and Security and Others [2011] 1 BLLR 83 (LAC) at para 54.

15Footnote 8

16See the authorities listed at footnote 10, page A1-34 Harms, Farlem, Fitchardt and Van Loggerenberg Erasmus Superior Court Practice (Juta) at A1-34.

17Footnote 15