Makhonjwa v Director General of the Department of Justice and Constitutional Development and Others (JR 998/19) [2023] ZALCJHB 90; (2023) 44 ILJ 1530 (LC) (21 April 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 998/19

In the matter between:

MAKHONJWA SOLO JOHANNES Applicant and THE DIRECTOR GENERAL OF DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT First Respondent THE MINISTER: DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Second Respondent MOKATSANE PS Third Respondent

Heard: 13 April 2023

Delivered: 21 April 2023

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 21 April 2023.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant is an employee of the department of justice and constitutional development. In 2014, he chaired a disciplinary hearing into allegations of theft against the third respondent (Mokatsane). The applicant initially issued a report in which he found Mokatsane not guilty. He avers that on reflection, and before the outcome of the enquiry had been conveyed to Mokatsane, he reconsidered his decision and issued an amended report in terms of which Mokatsane was found guilty. It is not in dispute that Mokatsane was requested to submit mitigating factors, after which he was dismissed. Some two and a half years later, the initiation of a forensic investigation, Mokatsane was reinstated on account of what was viewed as a flawed disciplinary process. The same investigation recommended that the applicant be disciplined for his role in the process.

[2] The applicant seeks in terms of section 158 (1)(h) of the LRA to review and set aside a decision made by the first respondent, specifically, a decision to reinstate Mokatsane. The applicant also seeks to review findings and recommendations made in the forensic report issued by the office of the first respondent, and ‘holding the quasi-judicial decision made by the presiding officer to be procedurally fair and binding until lawfully set aside’. (As I have indicated, the applicant is the presiding officer in respect of which this relief is sought.) The respondents oppose the application, and have filed a counter-review seeking a declaratory that the applicant became functus officio upon the release of the disciplinary hearing report dated 10 July 2014 (in which the applicant found Mokatsane not guilty), that the implementation of the sanction contained in the 1 August 2014 report (the second report in which the applicant found Mokatsane guilty) and the third respondent’s dismissal is lawful, that the disciplinary hearing report dated 10 July 2014 is valid and binding, that the report dated 1 August 2014 is unlawful and has no force and effect, and that the third respondent’s reinstatement is lawful, valid and in compliance with the disciplinary hearing report of 10 July 2014.

[3] At the hearing, there was no appearance on behalf of the respondent parties and the court heard submissions only by the applicant.

[4] The material facts can be gleaned from the founding and answering affidavits. Mokatsane, was employed by the department as a maintenance officer in the magistrate’s office, Viljoenskroon. On 7 March 2014, he was called to a disciplinary hearing on five charges of misconduct, including theft and absenteeism. The applicant was the presiding officer at the disciplinary hearing. The applicant was appointed in terms of the disciplinary code and procedure for the public service, a collective agreement that regulates the procedure for disciplinary hearings in the public service. As I have indicated, on 10 July 2014, the applicant acquitted Mokatsane of the charges against him. The respondents aver that the disciplinary outcome, in which the applicant’s decision is recorded, was sent to a Mr. Nkosi, the initiator in the disciplinary hearing. The email containing the outcome was also addressed to a Mr. Swanepoel, the deputy director: labour relations in the Free State regional office. Nkosi states that later on the same date, he received a telephone call from Swanepoel. Swanepoel asked him whether he had seen the outcome of the disciplinary hearing, and whether he had communicated to the outcome to Mokatsane. Nkosi replied that he had noticed that the applicant had found Mokatsane not guilty of the charges brought against him, but that he had not yet had the opportunity to inform Mokatsane of the outcome. Swanepoel instructed Nkosi not to send the outcome to Mokatsane, and that he would speak to the applicant to change the verdict. Pursuant to this conversation, which Nkosi found unsettling, he followed Swanepoel’s instructions and did not communicate

the outcome. Nkosi states that on a later date, Swanepoel emailed a different disciplinary hearing outcome, this time containing the verdict of ‘guilty’ and calling for written submissions in aggravation and mitigation of sanctions. Nkosi made submissions in aggravation as requested and received no further communication relating to the disciplinary hearing. On 22 August 2014, the regional head: Free State advised Mokatsane that he had been dismissed and had the right to lodge an appeal within five working days. It is not in dispute that Mokatsane did not lodge an appeal and that his dismissal was subsequently implemented.

[5] In the founding affidavit, the applicant avers that he prepared a report dated 14 July 2014 in which he found Mokatsane not guilty. While the report was in the possession of the regional office and after he had confirmed that it had not yet been issued to Mokatsane, he realised that he had misinterpreted the definition of theft in his ruling. The applicant revised his finding and issued a second report, dated 1 August 2014, in which he found Mokatsane guilty of theft.

[6] The applicant does not dispute that after a forensic investigation some 2 ½ years later, it was recommended that both he and Swanepoel be charged with misconduct. This was the consequence of an email addressed to the department by the union, alleging non-compliance with procedures and processes in disciplinary hearings. After an investigation, it appeared to the department that the applicant had acted in contravention of the disciplinary code by reviewing his own decision. It was recommended that both the applicant and Swanepoel be disciplined and that they be banned from dealing with labour relations matters in future. This recommendation was approved and the department took remedial steps in the form of the reinstatement of Mokatsane.

[7] In his founding affidavit, the applicant avers that he ‘challenges the approval and the decision of the first respondent in reinstating the third respondent on the basis that he did not comply with rules and that the approval misrepresented the facts and misleading (sic)’. In particular, the applicant avers that as presiding officer, he made a quasi-judicial decision, and that he had a right to relook and amend or change his decision on the report he had made, since the decision had not yet been conveyed to Mokatsane.

[8] The applicant avers that the first respondent committed a reviewable irregularity in accepting and approving the forensic report, without any input or comment from him (the applicant). Further, he avers that the first respondent committed a gross reviewable irregularity by not ‘administratively realizing that the office of third respondent had reported the case of theft with the police’ and that Mokatsane had subsequently been found guilty of theft and given a suspended sentence. Further, by failing to appeal against the decision to dismiss him, the applicant avers that Mokatsane had elected to accept the decision to dismiss him as fair, and that the first respondent committed a reviewable act by reinstating ‘a self-confessed criminal that he stole from the covers of the employer’. The applicant submits further that the first respondent committed a reviewable irregularity by accepting and approving that Mokatsane’s dismissal be set aside without seeking to approach this court to review that decision in terms of section 158 (1)(h) of the LRA.

[9] Section 158(1)(h) provides that this court is empowered to review any decision taken or any act performed by the state in its capacity as employer, on such grounds as are permissible in law. In his founding affidavit, the applicant fails to identify any particular ground for review. What he does is contend that the first respondent committed a host of reviewable irregularities in one form or another, without identifying a basis for review. This is not sufficient – section 158 (1)(h) requires an applicant to identify the ground for review. This court has previously held that the permissible grounds for review in terms of section 158 (1)(h) are dependent on the nature of the impugned decision and in particular, whether it constitutes administrative action or the exercise of a public power. This court has thus entertained and granted reviews brought under the grounds listed by Promotion of Administrative Justice Act, or at common law, or on the basis of the constitutional principle of legality. It is incumbent on an applicant in an application in terms of section 158 (1)(h) to identify the applicable ground for review; each is conceptually different and the requirements that attach to each differ. This is not the only hurdle faced by the applicant. In my view, the dispute between the applicant and the respondent does not concern either the administrative action or any exercise of public power. While it is correct that the applicant is an employee of the department, the present application does not concern the employment

relationship between him and the department. Rather, the applicant seeks relief in his capacity as the nominated chairperson of a disciplinary hearing into the alleged misconduct of another employee (Mokatsane).

[10] I fail to appreciate how it can be said that in these circumstances, the applicant exercised a power that is reviewable by this court, at his instance. The court has previously entertained applications by employers to review and set aside decisions made by chairpersons of disciplinary hearings (be they employees or independent parties contracted for that purpose) at the instance of the employer (see, for example, Khumalo v MEC Education: KwaZulu Natal (2014) 35 ILJ (CC)). But these cases concern employers who seek to review their own decisions or, put another way, decisions taken on their behalf. This is not one of those cases. In the present case, the applicant says no more than that he wrote a report following a disciplinary inquiry, that he reconsidered his findings before it had been communicated to Mokatsane, and that more than two years later, the department investigated the matter of the existence of two reports and recommended that he, the applicant, be charged with misconduct. Even less are the findings and recommendations made in the forensic report commissioned by the department, or the report itself, matters that are capable of review in terms of section 158 (1)(h). These are manifestly matters that ought to be dealt with internally according to department’s policies and procedures. It may well be that the applicant acted in good faith and that he was entitled to reconsider his decision, as he did. It may well be that if the department considers that it has grounds to discipline the applicant on that basis, that the applicant has a good defence to any allegations of misconduct. These are matters best dealt with in-house. In short, none of the decisions that the applicant seeks to challenge by way of review concern administrative acts or the exercise of public power rendering any decision taken in the process susceptible to review. The application stands to be dismissed for that reason.

[11] Even if I am wrong in coming to this conclusion, the respondents are correct to contend that once the applicant had completed his report at the conclusion of the disciplinary hearing and submitted that report to his superior, he was functus officio and that it is thus not open to him, certainly not at this stage, to seek to review the decision to reinstate Mokatsane. As I have indicated, if the applicant is aggrieved by that decision, he is entitled to invoke internal processes.

[12] In view of the conclusion to which I have come, it is not necessary for me to consider the counter-application filed by the respondents. For the purposes of section 162 of the LRA, the requirements of the law and fairness are best met by each party bearing its own costs.

I make the following order:

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Self