Malambo and Another v Head of Department: NW Department of Agriculture, Conservation, Environment and Tourism and Another (CA 1202/06) [2006] ZANWHC 69 (16 November 2006)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: CA 1202/06

In the matter between:

LOVEJOY MALAMBO 1ST

APPLICANT

MOGOMOTSO KGANTSI 2ND

APPLICANT

and

HEAD OF DEPARTMENT: NW

DEPARTMENT OF AGRICULTURE,

CONSERVATION & ENVIRONMENT 1ST

RESPONDENT

MATHEWS FESOKO N.O 2ND

RESPONDENT

JUDGMENT

LANDMAN J:

[1] The applicants, Messrs Lovejoy Malambo and Mogomotso Kgantsi, are the Director and Chief Director in the Department of Agriculture, Conservation and Environment of the North West Government. They are Senior Management Service Members. As such, disciplinary procedures relating to them are governed by the Senior Management Service Handbook (“the Handbook”), being a Ministerial Directive issued in terms of the Public Service Regulations, 2001.

[2] Paragraph 2.7(2)(c) of Chapter 7 of the Handbook contains a peremptory provision requiring that an employee in their position, who is suspended for misconduct or a serious offence, must be subjected to a disciplinary hearing within 60 days of being suspended.

[3] The applicants were suspended on 26 April 2005. On 17 November 2005, that is 22 days after the last date on which the hearing should have been held, the applicants were served with notices requiring them to elect whether they preferred an ordinary disciplinary hearing in terms of the disciplinary code and procedure applicable between employees in their position and the Department or whether they preferred to have a pre-dismissal arbitration as contemplated by section 188A of the Labour Relations Act, 66 of 1995.

[4] On the same day the applicant’s attorneys of record wrote to the Department indicating that the applicants “have opted to be represented by a legal representative.” The letter concluded with the request to inform the writer of possible dates for the disciplinary hearing.

[5] On 9 January 2006 the applicants’ attorneys of record were informed by the Investigating Officer appointed by the Head of Department, that the hearing was scheduled for 31 January and 1 February 2006.

[6] No objection to the applicants’ participation in the hearing was raised. On 10 February 2006 the applicants’ attorneys of record wrote a letter to the Director of Misconduct and Legal Services in the office of the Premier stating:

“We hereby place on record that our clients have been suspended since August 2005, and that our clients expressly reserve their rights to argue the employer’s failure to comply with paragraph 2.7(2)(c) of Chapter 7 of the Senior Management Service Handbook, which expressly provides that the disciplinary hearing ought to have taken place within 60 days from receipt of the precautionary suspension letter, which the Department clearly failed to adhere to.”

[7] The letter of 10 February 2006 was preceded by various letters. Other letters were written threefold. These letters dealt in large measure with dates for the hearing and documents requested by the applicants from the Department in order to prepare for the hearing.

[8] On 4 August 2006 applicants were served with new notices of a disciplinary hearing which, except for an additional charge of corruption and fraud, are similar to those issued earlier. Some correspondence and a disciplinary hearing followed, the latter being held on 21 August 2006.

[9] Central to the correspondence and disciplinary hearing aforementioned was the issue of suitable dates for the hearing. The applicants; attorneys wrote to the Director of Misconduct Unit and Legal Services on 16 August 2006 (which is just under 368 days after the applicants’ suspension) that:

“Please take notice that this letter as well as our previous correspondence will be used in any court proceedings if necessary to enforce a postponement of the said disciplinary hearing. Our clients reserve their rights. Advocate Hitge will contact you in due course to arrange for an alternative date.” (My emphasis.)

[10] This urgent application was launched on an urgent basis and set down for 14 September 2006. It was postponed until 26 October 2006. The parties agreed, inter alia, that “(t)he respondents shall not, pending agreement between the parties on a mutually suitable date, continue with the disciplinary hearing of the applicants.” The draft order was made an order of court.

[11] Mr Ramolefe, who appeared for the first respondent, submitted that:

(a) to the extent that the applicants were prepared to even discuss suitable dates for the hearing, and in addition, request documents to enable them to prepare for the hearing, their compliant about the Department’s failure to comply with the directive to hold the hearing within 60 days should not aid them at this state in their attempt to circumvent the hearing.

(b) despite the unequivocal appreciation of the Department’s failure to comply with the peremptory requirement for the hearing to be held within 60 days, yet did the applicants content themselves with the Department’s determination to hold the hearing notwithstanding. This, it is submitted, amounts to the clearest form of approbation the effect of which is to preclude the applicants from raising this objection so late in the day.

(c) the applicants’ failure to raise the crisp issue of the legal infringement of a right they claim ought not to stall the process at this eleventh hour and that the hearing should accordingly proceed on a date suitable to the parties. The parties will have ample opportunity, at that hearing, to raise whatever points in limine they might have.

(d) not only have the applicants have delayed in launching motion proceedings to challenge the Department’s failure to hold the hearing within 60 days of dismissing the applicants but that to the extent that the applicants even entertained the idea of a hearing after the lapse of the 60-day period, they have acquiesced with the Department’s approach.

(e) the proper forum for adjudicating the present dispute, as well as raising whatever procedural irregularities as the applicants might allege to exist, should be the disciplinary hearing which the parties themselves have contemplated holding.

(f) that the applicants could raise a point in limine the first respondent’s failure to institute the disciplinary hearing inquiry timeously.

[12] There us a curious ambilivence in the way both parties have approached the holding of a disciplinary hearing and the right to hold the hearing although the time for doing so has lapsed. The applicants were aware that the hearing will be held late but were willing, until lately, to raise the point for decision by the disciplinary chairperson.

[13] The Department’s argument is that they are entitled to hold the disciplinary inquiry because the applicants have acquiesced – or waived their right to have the hearing held timeously. But, if I understood Mr Ramolefe submitted that the applicants point that the Department was precluded from holding the hearing, would succeed if it is taken at the commencement of the hearing.

[14] Did the applicants waive their right? In order to waive their rights they must have knowledge of them. The letter of 10 February 2006 seems to be the earliest indication on record that they knew of clause 2.7(2)(c). Their attorneys made it clear that they would raise an objection along these lines at the disciplinary hearing which the Department insisted on convening.

[15] What is there to suggest that the applicants waived their rights after 10 February? Mr Ramolefe submitted that by again entering into an agreement regard the date of the hearing that this shows a waiver of their rights or acquiescence with the Department’s decision to hold a hearing out of time. There is no merit in this. The applicants reserved their rights and were, at the time, content to take a point in limine at the hearing that it was impermissible for the hearing to be held.

[16] There is also no merit in the submission made in relation to the postponement of this matter on 14 September to 20 October.

[17] The agreement that the disciplinary hearing would only continue on a mutually suitable date relates to the alternative prayer should their case fail (on the point that the hearing is out of time). This is inconsistent with an intention to waive their rights.

[18] Mr Ramolefe correctly submits that the applicants could raise a point in limine the first respondent’s failure to institute the disciplinary hearing inquiry timeously. This is undoubtedly an option available to them. But on this reasoning it cannot be said that by agreeing to dates for the disciplinary hearing the applicants have waived their right to rely on the Department’s failure to charge them timeously.

[19] The real question is whether the applicants are obliged to argue their point before the disciplinary chairperson or whether this court is entitled to rule on the point. The applicants have a choice.

[20] This court has jurisdiction to entertain an application to interdict the respondents from continuing with the disciplinary hearing.

[21] However it is submitted that the applicants have waived their right to approach this court for relief before the disciplinary chairperson has ruled on the point. That would have been the best and most cost effective option. It is the approach, which until recently, the applicants intended pursuing. The objection is a point of law. This court is in as a good position as the disciplinary chairperson to decide the issue.

[22] The applicants have not waived their right to rely on clause 2.7(2)(c) of the Handbook. They accordingly have a clear right not to be subjected to a disciplinary hearing. They have a reasonable apprehension of harm and no other remedy. The finding of the disciplinary chairperson would not be conclusive as it is susceptible to challenge by the Department by way of review or referral to the Bargaining Council and a review by the Labour Court.

[23] In the premises I intend granting the relief sought. As far as costs are concerned I have considered whether I should take into account the applicants’ departure from its earlier approach which was to allow the disciplinary chair to deal with their objection to the hearing. This does not seem to be a sufficient reason to depart from the rule that costs should follow the result. The delay is now extremely lengthy.

[24] I accordingly make the following order:

1. The Rules relating to service provided for in the Rules of this Court are dispensed with and that the matter is treated as one of urgency in terms of Rule 6(12) of the Rules of this Court.

2. The first respondent is prohibited from taking disciplinary action against the applicants in respect of the charges contained in Annexures “LM1” and “LM2”.

3. The suspension of the applicants from their services with the Department of Agriculture, Conservation and Environment is no longer valid.

4. The first respondent shall within five (5) days from date of this order, permit the applicants to resume their respective duties as Chief Director and Director within the Department of Agriculture, Conservation and Environment.

____

A

A LANDMAN

JUDGE

OF THE HIGH COURT

APPEARANCES:

For the Applicants : Adv M Hitge

For the Respondents : Mr K D Ramolefe

ATTORNEYS:

For the Applicants : Nienaber & Wissing

For the Respondent : State Attorney

Date of Application : 26 October 2006

Date of Judgment : 16 November 2006