MEC Department of Finance, Economic Affairs and Tourism: Northern Province v Mahumani (478/03) [2004] ZASCA 133; [2005] 2 All SA 479 (SCA); [2005] 2 BLLR 173 (SCA); (2004) 25 ILJ 2311 (SCA) (30 November 2004)

CASE NO: 478/03

Reportable

[1] The appellant, the MEC for Finance, Economic Affairs and Tourism, with leave of the Johannesburg High Court, appeals against the finding by that court that the respondent, Mr S G Mahumani, was entitled to be legally represented at a disciplinary hearing.

[2] The respondent was employed by the Department of Finance, Economic Affairs and Tourism, as a game reserve manager at the Andover Game Park, Northern Province. On 4 June 2003 he was suspended from his position on the ground, inter alia, that he was implicated in the theft and disposal of five rhinoceroses from the reserve. The appellant in due course initiated a disciplinary enquiry against the respondent for misconduct. This enquiry was to take place before, Mr N S Ratlabala (‘the presiding officer’), the second respondent in the court below.

‘ In a disciplinary hearing, neither the employer nor the employee may be represented by a legal practitioner, unless the employee is a legal practitioner. For the purposes of this agreement, a legal practitioner is defined as a person who is admitted to practise as an advocate or an attorney in South Africa.’

[4] The presiding officer was of the view that s 7.3(e) did not repose in him a discretion to grant legal representation. He was fortified, he believed, in this view, by the decision of Wallis AJ in the case of Mosena and others v The Premier: Northern Province and Others case no 1401/ 2000 an unreported judgement of the Labour Court.

[5] The respondent, not content with this ruling, brought an application in the Johannesburg High Court to review and set aside the ruling of the presiding officer. Pending that review application, the respondent launched an urgent application to stay the disciplinary hearing. At the hearing of that application, the parties agreed not to proceed with the disciplinary enquiry until the finalisation of the review application. The costs of that application were reserved for determination at the hearing of the review application.

[6] The presiding officer’s decision was reviewed and set aside by the court a quo. It held that the respondent was entitled to be legally represented at the disciplinary hearing and made the following order:

‘ (1) The decision of the second respondent that the applicant is not entitled to legal representation at the disciplinary enquiry is set aside.

[7] Before us counsel for the appellant submitted that clause 7.3(e) of the Code in express terms, excludes outside legal representation and that it was not susceptible to an interpretation vesting a discretion in the presiding officer to allow legal representation at a disciplinary hearing. In this regard they relied on the judgment by Wallis AJ in the Mosena case.

‘ 2 The following principles inform the Code and Procedure and must inform

[9] In the Mosena case it was submitted that, in the light of clause 2.8, clause 7.3(e) of the Code should not be construed as an absolute prohibition against legal representation at a disciplinary hearing. Wallis AJ held that clause 2.8 is an injunction in regard to an employer’s general approach to discipline and should not be interpreted as authorising wholesale discretionary departures from the Code and procedures. It should be interpreted to only authorise departures where it would be necessary by agreement or otherwise, to depart in some respect from the strict terms of the procedure. He found in clause 2.7, which provides that disciplinary proceedings do not replace or imitate court proceedings, a strong indication that the parties considered clause 7.3(e) to be a fundamentally important portion of their agreement.

[10] I agree with Wallis AJ that clause 2.8 is an injunction as to the general approach that should be followed. I, furthermore agree, that clause 7.3(e) is a fundamentally important provision of the agreement and that it should not lightly be departed from. But, there may be circumstances in which it would be unfair not to allow legal representation (see Hamata and Another v Chairperson, Peninsula Technickon Internal Discplinary Committe, and Others 2002 (5) SA 449 (SCA) at paras 12 and 13).

[11] In terms of our common law a person does not have an absolute right to be legally represented before tribunals other than courts of law ( Dabner v SA Railways and Harbours 1920 AD 583 at 598; and Hamata at para 5). However, it does require disciplinary proceedings to be fair and if ‘in order to achieve such fairness in a particular case legal representation may be necessary, a disciplinary body must be taken to have been intended to have the power to allow it in the exercise of its discretion unless, of course, it has plainly and unambiguously been deprived of any such discretion’ (per Marais JA in Hamata at para 23). The provisions of the Promotion of Adminstrative Justice Act 3 of 2000 in respect of administrative action in general corresponds with the common law in respect of disciplinary proceedings. Sections 3(1) and (3) reads as follows:

3(3) In order to give effect to the right to procedurally fair administrative action, an administrator may, in his or her or its discretion, also give a person referred to in subsection (1) an opportunity to –

(b) present and dispute information and arguments; and

(c) appear in person.’

In Hamata (at para 23) Marais JA found it unnecessary to decide whether the bodies concerned were engaging in ‘administrative action’. In the present case it is similarly unnecessary to do so as it would make no difference to the outcome of the matter.

[12] The parties, who agreed on the Code, were intent on devising a fair procedure (see clause 2.4) and it is reasonable to assume that they also knew that there may be circumstances in which it would be unfair not to allow legal representation. In these circumstances it is likely that they

would have intended the presiding officer to have a discretion to allow legal representation in circumstances in which it would be unfair not to do so. I can find no indication in the Code to the contrary. There is, therefore, no justification for interpreting 'appropriate circumstances' in clause 2.8 so as not to include circumstances, which would render it unfair not to allow legal representation at a disciplinary enquiry.

[13] It follows that, if, on a conspectus of all the circumstances it would be unfair not to allow legal representation the provisions of clause 7.3(e) may in terms of clause 2.8 be departed from. The presiding officer erred in holding that he had no discretion to allow such a departure. The court a quo , therefore, correctly reviewed his decision and set it aside.

[14] In the face of the failure by the presiding officer to exercise the discretion which he had, this matter has to be referred back to him for consideration. It is not for this court to exercise the discretion which is reposited in the presiding officer unless there are good reasons for doing so (see eg UWC and Others v MEC for Health and Social Services and others 1998 (3) SA 124 (C) at 130J-131H). Counsel for the respondent was not able to advance any good reasons other than to contend that the respondent would be prejudiced by the delay occasioned by the referral back to the presiding officer. Delay is a consideration to be taken into account, but on the papers before us, there is insufficient information upon which to exercise the discretion as to whether the circumstances of the matter warrant a departure from the provisions of clause 7.3(e). Although not a numerus clausus , this court in the Hamata case (at para [21]) set out some of the factors which may be taken into consideration in the exercise of such a discretion, namely: the nature of the charges brought; the degree of factual or legal complexity attendant upon considering the charges; potential seriousness of the consequences of an adverse finding and the nature of the prejudice to the employer in permitting legal representation.

2. Paragraphs 2 and 3 of the order granted by the court a quo are set aside and replaced by the following order:

…………… ..

CN PATEL

Acting Judge of Appeal

Streicher JA