Mngomezulu v Department of Agriculture and Rural Development, Free State Province and Others (3660/2020) [2020] ZAFSHC 184 (23 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No. 3660/2020

In the matter between:

LERATO NENCY MNGOMEZULU Applicant and DEPARTMENT OF AGRICULTURE AND RURAL DEVELOPMENT, FREE STATE PROVINCE 1st Respondent DR. T J MASITENG 2nd Respondent BALDWIN NDOU 3rd Respondent

CORAM:

DAFFUE J

HEARD ON: 29 SEPTEMBER 2020

JUDGMENT BY: DAFFUE J

DELIVERED ON: 23 OCTOBER 2020

[1] The applicant, Me Lerato Nency Mngomezulu is the Chief Financial Officer of the Department of Agriculture and Rural Development, Free State Province. The Department is cited as 1st respondent in the application. The 2nd respondent, Dr. T J Masiteng is the Acting Head of the Department and the 3rd respondent, Mr Baldwin Ndou is cited in his official capacity as the chairperson of an internal disciplinary hearing initiated by the 1st respondent against the applicant.

[2] On 6 November 2019 applicant was suspended pending disciplinary proceedings to be instituted. On 23 January 2020 she was served with a notice of a disciplinary hearing scheduled to take place on 14 February 2020. Not satisfied with the bundle of documents received from the 1st respondent in order to prepare for the disciplinary hearing, applicant submitted a request for disclosure of information in terms

of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA), instead of the Promotion of Access to Information Act, 2 of 2000

(PAIA).

[3] No response was received from the 1st respondent whereupon applicant lodged an application to the Commission for Conciliation, Mediation and Arbitration (CCMA) for disclosure of information. This application is still pending before the CCMA.

[4] On 15 September 2020 the applicant was again served with a notice to attend a disciplinary hearing scheduled for three days starting from 28 September 2020 to 30 September 2020. Upon receipt of the notice a formal request for postponement was made to 2nd respondent as there was still a pending matter before the CCMA pertaining to the disclosure of information. Applicant was

informed that she should make a request for postponement to the chairperson of the hearing on 28 September 2020.

[5] Applicant and her attorney of record agreed that they would apply for a formal postponement to the chairperson on 28 September 2020, but on that day there was no appearance by the chairperson. The initiator of the disciplinary hearing arrived later and informed applicant and her lawyer that the chairperson would not be attending the disciplinary hearing on that day, but that he would be available on 29 September 2020, i.e. the next day.

[6] Instead of proceeding to the venue where the disciplinary hearing was to be held and apply to the chairperson for a postponement on 29 September 2020, applicant decided to approach the High Court. Her papers were prepared in haste and signed on 29 September 2020. The intention was to approach the court at 11h30 for the following urgent relief:

“2. Pending the award to be handed down by the CCMA as regards the disclosure of information, the first, second and third respondents are herewith interdicted and restrained from:

2.1 Calling and setting down any internal disciplinary proceedings against the applicant;

2.2 Taking any action and/or making any arrangements intended to and/or the purpose of which will be to set down with a purpose of continuing with such an internal disciplinary hearing against the applicant.

3. Costs of suit on a scale as between attorney and its own client scale against first, second and third respondent, jointly and severally, the one paying the other to be absolved – including the urgent costs of preparing this application.”

[7] When the matter came before me at about 11h45, Mr Chauke of the State Attorney requested it to stand down until 15h00 as his counsel was at that stage in consultation with the client to ascertain how the matter should be approached. The application was served on second respondent at Glen College about 25 kilometers out of town. The State Attorney received the documents minutes before the time set down for the hearing.

[8] At 15h00 Adv Nhlapo of the local bar appeared on behalf of the respondents, duly instructed by the State Attorney. Mr Mokhele appeared for the applicant. The respondents served and filed a notice in terms of r 6(5)(d)(iii), indicating their intention to raise the following questions of law:

“1. Does this Honourable Court have the jurisdiction to entertain this application in terms of section 157(2) of the Labour Relations Act 66 of 1995?

2. Has the Applicant complied with the pre-emptive requirements of section 35 of the General Laws Amendment Act 62 of 1955?

3. Has the applicant complied with the prescripts of Uniform Rule 6(12)(b) in explicitly setting out the reasons why the applicant would not be afforded substantial redress at a hearing in due course.”

During argument Ms Nhlapo made it clear that she had received instructions to apply for a postponement in order to file an answering affidavit in the event of the court finding against respondents in respect of the questions of law raised on behalf of respondents.

[9] I had to attend to the application during the recess and in the course of an extremely busy week. Notwithstanding an unusually

long motion court roll, I also had to deal with several urgent or alleged urgent applications.

[10] It was clear to me during argument that both legal representatives did not have sufficient time to present detailed arguments in respect of the points of law. Ms Nhlapo had probably only about 1 – 2 hours to prepare for the hearing. She made a valiant attempt to argue the matter as thoroughly as possible. She submitted that the dispute between the parties remains an unfair labour practice in terms of s 186(2)(b) of the Labour Relations Act, 66 of 1995 (the LRA) and that the dispute falls within the ambit of the LRA. Furthermore, this court does not have jurisdiction to entertain the application with reference to s 23 of the Constitution and s 157(1) of the LRA. She also submitted that, instead of being given 72 hours’ notice as provided for in s 35 of the General Laws Amendment Act, 62 of 1955, her clients received a mere 2 hours’ notice. It was further submitted by her that the applicant did not comply with the prescripts of r 6(12)(b) insofar as no reasons were tendered under oath why the applicant would not be afforded substantial redress at a hearing in due course. In essence she argued that urgency was self-created.

[11] Mr Mokhele tried to convince me that s 35 of the General Laws Amendment Act was not applicable, but he is clearly mistaken insofar as applicant is seeking interim relief. According to him there was no reason for the applicant to approach the court earlier and therefore urgency was not

self-created. He also submitted that the High Court has concurrent jurisdiction with the Labour Court in accordance with the provisions of s 157(2) of the LRA. He referred to a judgment of the full bench of this division in M L Rantso v MEC for the Department of Health, case number A198/2008, a judgment delivered on 4 February 2010. He acknowledged that the judgment did not support his client’s

case insofar it was held that the issue at hand was distinctly a labour matter only. The appellant sought reinstatement in that matter.

[12] Mr Mokhele referred specifically to his letter of 28 September 2020 attached as annexure “FA14” to the founding affidavit. He confirmed therein that the 3rd respondent did not turn-up at the disciplinary hearing which was supposed to start on 28 September 2020. More importantly, it was indicated in paragraph 2.6 of the letter that there was no indication or confirmation that the 3rd respondent would appear on 29 September 2020, but “yet your representative is expecting our client to appear without any formal notification thereof.” The application was brought on the 2nd day of the intended disciplinary hearing in circumstances where 3rd respondent as chairperson failed to appear on the 1st day with no indication that he was available and ready to proceed on the 2nd day, to wit 29 September 2020.

[13] This is really a judgment with no practical effect, save for the issue of costs. Even if I were to deliver an ex tempore judgment immediately after oral arguments, i.e. at or about 16h00 on 29 September 2020, there would only be one day left for the disciplinary hearing previously arranged to be conducted over a period of three days. Even if I dismissed the application at that stage, applicant would be within her rights to apply to the chairperson the next day for postponement pending the handing down of an award by the CCMA. Whether or not she would be successful is not for me to speculate.

[14] It is unfortunate and a pity that the appointed chairperson stayed away from the disciplinary hearing, especially bearing in mind that a senior official of 1st respondent was facing a disciplinary hearing. Such conduct leaves a black mark on the integrity of the chairperson and to an extent the 1st respondent. Such behaviour cannot and should not be countenanced, bearing in mind that applicant is on suspension for such a long period with full pay.

[15] Applicant knew all along that 1st respondent intended to proceed with the disciplinary hearing and if she was really interested in ensuring that the matter does not proceed without the alleged relevant documents, she should have approached the Labour Court for an urgent interdict immediately after receipt of the notice of the hearing on 15 September 2020, alternatively, and if she believed that the High Court had jurisdiction, she could have approached this court with due and proper notice to the respondents.

[16] It is my prima facie view that the High Court does not have jurisdiction to hear the application. The issue is quintessentially a labour dispute and the mere fact that applicant approached the CCMA earlier serves as proof that she and her attorney were of the same view. However, I have not done sufficient research to make a definite finding whether this court has jurisdiction or not to grant the orders prayed for. Even if this court has jurisdiction – which I am prepared to accept for purposes of the application - I would have struck the application from the roll with costs insofar as the second and third questions of law must be answered in favour of the respondents.

[17] In any event, I would not be prepared to exercise my discretion to grant interim relief even if all three questions of law raised by the respondents were to be answered in favour of the applicant. It is not for this court to interfere with pending disciplinary hearings, either midstream, or as in this case even before the proceedings have kicked off. I only need to mention one of the requirements of interim interdicts and that is the availability of an alternative satisfactory remedy. The application for postponement should have been brought to the chairperson whenever he was ready to proceed with the disciplinary hearing. If it was not for the fact that the respondents could be blamed for the chaos that erupted with the non-availability of the chairperson on 28 September 2020, I would be prepared to dismiss the application with costs on an attorney and client scale. Having regard to all the circumstances I shall not make a punitive costs order against the applicant.

[18] Order:

1. The application is dismissed with costs.

__________________

J P DAFFUE J

On behalf of Applicant: Mr L M Mokhele

Instructed by: L.M Mokhele Attorneys Inc

BLOEMFONTEIN

On behalf of Respondents: Adv K Nhlapo

Instructed by: State Attorney