Mzolo v Rhodes University and Another (2461/2020) [2020] ZAECGHC 151; [2021] 3 BLLR 306 (ECG); (2021) 42 ILJ 1308 (ECG) (4 December 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: 2461/2020

Not Reportable

In the matter between:

NKOSINATHI MZOLO

Applicant

and

RHODES UNIVERSITY

First Respondent

DISCIPLINARY REVIEW PANEL

Second Respondent

JUDGMENT

JIKELA AJ

[1] This is an urgent application brought by the applicant, an employee of the first respondent for an order in the following terms:

"1.1 That this matter may be heard as a matter of urgency and to dispense with the forms and the service provided for in the Uniform Rules of Court and allowing the matter to proceed as an urgent application in terms of the Rules of Court;

1.2 That the internal review of Chairperson Marion Fouche's disciplinary outcome and sanction have been declared a breach of the terms of the applicant's Contract of Employment, and therefore unlawful and void ab initio;

1.3 Costs of the application against the first respondent and any other respondent who may choose to oppose this application and in that event jointly and severally."

[2] The applicant, a full-time lecturer in the Law Faculty of the first respondent was accused of inter alia sexually assaulting and/or sexually harassing and intimidating a first-year female university law student ('the student'), as well as accusing the first respondent of being racist. Subsequent thereto, the first respondent instituted a disciplinary hearing against the applicant. On 21 July 2020 the first respondent appointed Professor Marion Fouche, an independent adjudicator who is also a part-time commissioner for the Commission for Conciliation, Mediation and Arbitration ('CCMA') as the chairperson of the disciplinary hearing ('the Chairperson').

[3] On or about 23 July 2020, the Chairperson issued an outcome report. The applicant was found not guilty of having sexually assaulted and /or sexually harassed or intimidated the student. However, he was found guilty of accusing the first respondent of being racist and of making a statement potentially harmful to the first respondent. To that end, the applicant was issued with a final written warning, valid for 12 months, for unfortunate and/or inappropriate statements that may be harmful to the first respondent. Further, the applicant was ordered to give a written apology to the first respondent, and to undergo counselling in order to learn the boundaries between lecturer and student for at least 12 months.

[4] The sanction appears to have been handed down on 14 August 2020. The applicant accepted the findings and the sanction imposed by chairperson and was enthusiastic and prepared to resume his duties as a lecturer.

[5] It appears from the papers that the first respondent viewed the decision reached by the chairperson in her findings on the allegations and the sanction imposed as grossly unreasonable and aberrant. Further, the first respondent is of the view that the disciplinary process itself was plagued with reviewable irregularities, the fault of which lies with the chairperson. It is of the firm view that no reasonable decision maker in the position of the chairperson could have reached the conclusions that she did. This view and the intended internal review process was clearly articulated by the first respondent in the correspondence that was exchanged between it and the applicant shortly after the handing down of the outcome report on sanction.

[6] To that end the first respondent has launched internal review proceedings, to review and set aside the decisions reached by the chairperson in her findings on merits and the sanction imposed. The first respondent seek to request the second respondent (the review panel) to substitute the findings of the Chairperson with the finding that the applicant is guilty as charged on all allegations and that he should be summarily dismissed from the first respondent.

[7] The first respondent considers itself to be duty bound to conduct an internal review of the applicant's disciplinary proceedings.

[8] On one hand, the applicant asserts in his founding affidavit that an immense amount of effort and resources was put into the disciplinary hearing and that is precisely the reason there is no right of appeal or review available to either party, therefore the aim of the parties was to get it right the first time. The applicant is challenging the validity of the internal review proceedings that the first respondent seeks to undertake. The challenge is based on inter alia, that there are no exceptional circumstances that exist which somehow permit the first respondent to venture outside of its own Disciplinary Code and Procedure ("the disciplinary code") and subject him to a further disciplinary process. Furthermore, the first respondent is accused of attempting to start up an ad hoc mini Labour Court. The said ad hoc process has not been approved by the first respondent's Council therefore, it will be an unlawfully constituted process that has no authority over the applicant.

[9] Likewise, the applicant asserts that his contract of employment with the first respondent has by reference incorporated into it the Disciplinary Code. Unless the Disciplinary Code is amended to cater for such an internal review process, the applicant is entitled to insist that he be subjected to the disciplinary process as per the contract of employment and nothing more. According to the applicant the first respondent is bound by its own disciplinary procedures and more importantly, the terms of the contract of employment.

[10] Even though the applicant does not seek to interdict the first respondent from holding the internal review proceedings, he has chosen not to subject himself to the process. One of the applicant's concerns is that, if at the internal review proceedings the first respondent fails or neglects to adhere strictly to the disciplinary procedure, and ultimately manipulate or abuse the process to achieve a desired result, the applicant would be left with no satisfactory redress. It is instructive to note, and this view is

also fortified in the oral submissions made on behalf of the applicant, that the applicant somehow considers the "internal

review proceedings" to be tantamount to a second disciplinary hearing. It is on that basis that the applicant now seeks to declare the internal review of the chairperson's disciplinary outcome and sanction to be a breach of the terms of the contract of employment between him and the first respondent, unlawful and void ab initio.

[11] The first respondent is opposing this application, mainly on two grounds namely:

8.1 This application is the fourth legal process instituted by the applicant against the first respondent within the past 3 months therefore, there is no reasonable basis upon which the applicant launched the application on an urgent basis and the applicant has failed to inform this Court why he cannot achieve substantial redress during the ordinary course or through the several other remedies that are and may be available to him, therefore the launching of this application constitutes an abuse of Court process.

8.2 The second point on which the opposition of this application is founded is the alleged lawfulness of the internal review process. The first respondent in its founding affidavit deposed to by Ms Susan Smailes ('Smailes'), an employee of the first respondent as its Director: Office of the Vice Chancellor, asserts that the applicant expressly agreed with the first respondent in the contract of employment that he is bound by:

"1.1 The conditions of service which are set out in this document;

1.2 All University policies; and

1.3 Any policies and provisions which may from time to time be issued by the Rhodes University and with due regard to substantive and procedural fairness, be made binding upon you."

[12] In essence, the applicant and the first respondent expressly agreed that the first respondent may from time to time and in addition to existing conditions of service and policies, issue any policy or provision

that would be binding upon the applicant. It was, however required that the policy or provision (which could be issued in respect of only the applicant) meet the requirements of substantial and procedural fairness. Acting in accordance with the Employment Contract, the first respondent was entitled to provide for the internal review process. The internal review process is self-evidently fair, both from a procedural and substantive perspective, thus, the proposition that the internal review process contemplated by the first respondent is unlawful is misplaced, so she contends in her founding affidavit.

[13] Further, Smailes states that the convening of the internal review process is lawful and the basis for its lawfulness can be summarised as follows:

13.1 The disciplinary code does not expressly prohibit nor does it preclude an internal review as envisaged by the first respondent. The first respondent has an inherent and/or implied right to do so, which has not been waived or abandoned. Smailes states further that all employers, the first respondent included, have a common law right to convene a second disciplinary enquiry or to hold an internal review of disciplinary proceedings, in appropriate cases. Whether or not a second disciplinary hearing or internal review may be convened depends upon whether, in the circumstances of a particular case, it is fair to do so. She goes further to say she is of the firm view that fairness, and fairness alone, is the yardstick in the determination of appropriateness of the internal review process.

13.3 Where a disciplinary chairperson's decision is so aberrant, having regard to the facts before him/her and the law, that one could reasonably infer ma/a fides , a failure to apply the disciplinary code or the failure to apply his or her mind to the task at hand, an employer has the common law right to review such decisions internally or convene a second disciplinary hearing, without offending the double jeopardy principle.

13.4 The right to convene internal review process, implied by law, forms part of the employment relationship and the first respondent's disciplinary code.

13.5 Clause 2.3.9 of the disciplinary code records that:

"The principles of national justice , equity and fairness should be adhered to in the handling of disciplinary matters."

13.6 The first respondent even where it has appointed an external chairperson to preside over a disciplinary process, it has not and it cannot abdicate its responsibility to enforce discipline, which remains the ultimate responsibility and in the control of the first respondent's management.

13.7 In respect of sexual harassment cases, such cases must be handled "in terms of the Code of Good Practice on Handling of Sexual Harassment Cases as contained in the Labour Relations Act." In this regard Smailes relies on clause 1.4 of the disciplinary code. In terms of the code, employers are obliged to take positive steps to eradicate sexual harassment in the workplace. Smailes is of the view that an internal review process may legitimately achieve this objective and discharge the first respondent's statutory obligation.

[14] Gladwell Mabizela, the Vice Chancellor of the first respondent has deposed to a confirmatory affidavit in this matter. The salient aspects of his affidavit are:

14.1 That when the outcome of the applicant's disciplinary hearing was brought to his attention on or about 28 July 2020, the senior members of the Faculty of Law made it clear to him that the applicant would not be welcome should he return to the Faculty of Law. At the time, a sanction was yet to be imposed on the applicant. Dr Mabizela then made a decision that the first respondent would await the sanction before determining the way forward. When the sanction was handed down, he was of the view that an injustice had occurred. The first respondent sought guidance from its legal representatives in regard to what could be done under the circumstances. As 'the University's ultimate disciplinary authority', Dr Mabizela was advised by the first respondent's legal representatives that the findings of the chairperson and the sanction imposed, were grossly unreasonable and aberrant. There were various potential options that were proposed to Dr Mabizela including the following:

14.1.1 reviewing the outcome of the disciplinary hearing in the High Court or the Labour Court; or

14.1.2 an internal review process.

[15] Dr Mabizela had to balance the applicant's interests (as required by the applicable Labour Law), with those of the young female student and the student body at large, whilst he was mindful that the senior staff members of the Faculty of Law did not view it as appropriate that the applicant be permitted to return to work.

[16] Of significance was that the young female student had received psychological counselling from a well-known local psychologist who at the end of the assessments found that she suffered severe and debilitating consequences as a result of the immense pressure of having to testify in a protracted disciplinary hearing involving one of her lecturers. Even though Dr Mabizela was mindful of the fact that an internal review process is not explicitly catered for in the disciplinary code, however, whilst compatible with the disciplinary code and existing case law authority, given the fact that the first respondent always strived to keep disciplinary matters confidential he determined that the least (public) route, but one which would still allow for substantive and procedural fairness to prevail, would be an internal review process.

[17] I now turn to deal with urgency. As afore stated, the first respondent takes the point that the matter is not urgent. Therefore, it is necessary to have regard to the dealings between the parties in the months prior to the launching of this application. Most of these facts are common cause between the parties and they are briefly stated as follows:

17.1 Sometime during mid-2019 the applicant was charged with misconduct and faced charges including inter alia sexual assault, sexual harassment, and racist behaviour. On 14 November 2019 the applicant was placed on precautionary suspension. The disciplinary hearing appears to have been protracted as it was held over a few months. Ultimately on or about 21 July 2020 the chairperson handed down his findings. The applicant was found not guilty on the sexual assault and/or sexual harassment charges however he was found guilty of making a statement potentially harmful to the first respondent, in that he accused the first respondent of being racist.

14.2 On 11 August 2020 the chairperson handed down her sanction, thereafter the applicant sought to return to work as the chairperson had made it clear that his suspension was lifted with immediate effect. The chairperson directed that the applicant should report for duty on Monday, 17 August 2020 or if the first respondent's activities have not reopened during the lockdown period, as soon as activities commence again.

14.3 On 17 August 2020 the applicant addressed an email to the Employee Relations Manager of the first respondent wherein he sought to return to work. On the same day the applicant was advised by the Employee Relations Manager that the first respondent is still considering the findings and the sanction imposed, to that end, it was still considering its position. The applicant was asked to remain at home until he had been advised of the way forward. The applicant having waited more than 7 days for the first respondent's response and upon realising that his suspension had been extended for no apparent reason, he referred an unfair labour practice dispute to the CCMA on 27 August 2020. On the same day, the applicant advised the first respondent's Employee Relations Manager that he had referred an unfair labour practice dispute to the CCMA.

14.4 On 28 August 2020 the first respondent's attorneys, Eversheds Sutherland, addressed a letter to the applicant, wherein the applicant was advised that the first respondent considers the decisions reached in the outcome of the disciplinary hearing to be aberrant and grossly unreasonable. That conclusion was based on the view that the chairperson misconstrued the law, adopted an arbitrary and improper approach to the evaluation of evidence before her and made several; incorrect sexual findings, culminating in the illogical and unreasonable conclusions reached by her. Likewise, the first respondent considered the sanction imposed by the chairperson to be aberrant and grossly unreasonable.

14.5 At paragraph 6 of the first respondent's attorney's letter the following is recorded:

"Having regard to the aforementioned, our client (among others) has been placed in the invidious position where, as matters stand, a miscarriage of justice prevails. As you will readily appreciate, our client is now duty bound to take appropriate steps to address these concerns. In these exceptional circumstances, you are hereby notified that our client has taken a decision to convene an internal review hearing in terms of which the decisions will be subject to review. "

14.6 Similarly, at paragraphs 7 and 8 thereof the following is recorded:

"7.1 Our client is in the process of procuring a transcript of your disciplinary hearing;

7.2 Once our client is in receipt of the transcript, our client shall furnish you with a copy of the transcript;

7.3 Within seven (7) calendar days after having provided you with a copy of the transcript, our client shall provide you with notice of its grounds for review, together with an affidavit in support of those grounds ("the review application';

7.4 You shall be afforded seven (7) calendar days from the date on which you are served with the review application to provide your written response thereto in the form of a notice to oppose and an affidavit in support thereof, if any;

7.5 Our client shall, within four (4) calendar days after being served with your answering papers, be afforded an opportunity to file a replying affidavit if any;

7.6 The internal review hearing will be presided over by an external and independent review panel ("the panel) ;

7.7 After the delivery of the respective parties' papers as aforesaid, a date will be determined for the parties to appear before the panel to present oral argument with reference to the transcript and the respective parties' papers (''the internal review hearing'?;

7.8 At the internal review hearing both parties will have a fair and equal opportunity to be heard and enjoy all such rights as the parties may have;

7.9 Both parties will be entitled to legal representation;

7.10 The panel shall have wide powers to make any order that is fair and reasonable in the circumstances including but not limited to:

7.10.1 whether the whole or part of the outcome and/or sanction should stand;

7.10.2 whether the outcome and/or sanction, wholly or in part, should be reviewed and set aside; and/or

7.10.3 substituting the decisions, wholly or in part, with its own findings and sanction, including the making of any order on outcome on guilt and/or sanction that should be imposed ;

7.10.4 making any lawful order it deems appropriate in respect of the conduct of the internal review hearing.

8. In the interim, our client intends placing you on precautionary suspension pending the order to be handed down by the panel in due course." [1]

[18] On the same day, (28 August 2020) the first respondent's Acting Human Resources Director addressed a notice of intention to suspend the applicant. Paragraphs 3 to 5 thereof records the following:

"3. As you are aware from the University's letter dated 26 August 2020 to which this notice is annexed, the University is of the view that the chairperson's outcome and sanction are, for various reasons aberrant and grossly unreasonable. To this end, as you know, the University is convening an internal review hearing in terms of which the decision reached in the outcome and sanction shall be subjected to a review before an independent review panel .

4. Given that the University is of the view that you have misconducted yourself as set out more fully in the notice to attend a disciplinary enquiry, the University would like to afford you the opportunity to make representations as to why you should not be suspended pending the outcome of the internal review hearing.

5. In this regard, please note that you are required to provide the University with your representations, if you wish to make any, by not later than 15h00 on Tuesday , 1 September 2020, failing which the University shall proceed with re-implementing your suspension . Kindly note further that should the University be dissatisfied with the representations made by you, the University shall proceed with your suspension."

[19] In response to the letters of the first respondent, on 28 August 2020 the applicant addressed an email to Ms Kyle-Terre Lamb ('Lamb '), a trainee associate in the employ of the first respondent's attorneys. The following is recorded in the applicant's email to Lamb:

"Kindly be advised (as you would already know) that this whole matter has been referred to the CCMA and a further 7.11 Form will be sent to CCMA based on your email below."

[20] In this regard the applicant was referring to a further dispute that he had referred to the CCMA ("the second referral")[2]. Noteworthy is the fact that the applicant has recorded in the CCMA referral form that "undue review of previous disciplinary action" is one of the facts giving rise to the dispute before the CCMA at the time.

[21] On 16 September 2020 the applicant referred a third dispute to the CCMA.[3]

[22] On 25 September 2020 both the applicant and the first respondent attended to conciliation at the CCMA however, the matter was not resolved.

[23] On 4 November 2020 the first respondent invited the applicant to collect documents, including a transcribed record of the disciplinary hearing at the Main Administration Building, Rhodes University. In response thereto and on the same day the applicant advised the first respondent that he will collect the documents the following day.

[24] On 10 November 2020 the first respondent's attorneys advised the applicant that the internal review hearing will proceed at 09h00 on Friday, 27 November 2020. On the same day the applicant's attorneys, Wheeldon, Rushmere & Cole Inc. replied to the first respondent's attorneys and advised that the disciplinary code does not allow for the employer to review its own decisions, or those of its duly appointed chairpersons to whom the authority is delegated in terms of the code to hand down sanctions with their discretion. Further, it was pointed out to the first respondent's attorneys that the applicant's contract of employment incorporated the disciplinary code and that the applicant was contractually entitled to a procedurally fair disciplinary process as set out in the disciplinary code. The first respondent was requested to undertake to abandon the review process which it had embarked upon, and such undertaking was to be provided on or before the 13th November 2020, failing which the applicant would have no other option but to approach the High Court on an urgent basis seeking the review of the internal disciplinary process and for it to be declared unlawful and void ab initio.

[25] On 11 November 2020 the applicant withdrew the second and/or third referral.

[26] It appears from the applicant's replying affidavit that on 11 November 2020 his attorneys wrote to the first respondent and set out an alternative proposal which

required the first respondent to stay the internal review proceedings pending the outcome of the alternative dispute resolution procedure being finalised. Nonetheless, a copy of the said letter is not attached to the Court papers, therefore, nothing much can be said about the proposed alternative

resolution process.

[27] On 13 November 2020 the first respondent's attorneys replied to the applicant's attorneys and advised inter alia that the first respondent would not be suspending the internal review process.

[28] Subsequent thereto on 16 November 2020 the applicant launched this application on an urgent basis. This matter served before the Duty Judge who upon considering the certificate of urgency and other papers which were before him issued a directive.[4] The duty Judge correctly so, directed that the issue of urgency and the merits must be dealt with by the application Judge in due course as deemed necessary.

[29] At the hearing of this matter, Mr Miller, counsel for the applicant submitted that the first respondent is bound by the rulings and findings made by the chairperson in relation to the applicant's guilt and the sanction imposed. The internal review proceedings are unlawful and contrary to the contract of employment of the applicant in that:

29.1 it has not been sanctioned by the first respondent's counsel, as required by the Rhodes University statute;

29.2 it is not provided for in the disciplinary code and procedure approved by the Council; and

29.3 it is not incorporated in the contract of employment entered into by the applicant and the first respondent. The applicant had no satisfactory alternative remedy but to approach Court for specific performance, for the first respondent to act in terms of the Contract of Employment. The applicant seeks to enforce his contractual rights, so he submitted.

29.4 According to the applicant this case falls squarely in the provisions of clause 1 of the employment contract. It was submitted further that the disciplinary code was a product of collective bargaining, therefore the first respondent cannot choose to neglect it when it is convenient to do so. The applicant is of the view that there is no other manner of interpreting the employment contract of the applicant other than to find that the disciplinary code is incorporated into the terms of the contract, therefore the applicant is entitled to be treated within the terms of the contract.

29.5 Any unlawful and ultra vires process which is not enforced by policy or contract is invalid.

[30] It was further contended on behalf of the applicant that Dr Mabizela had no authority to decide for the first respondent and set up a process that is not informed by the disciplinary code. The applicant denied that Dr Mabizela is the ' ultimate disciplinary authority' in the first respondent. In this regard, I was referred at length to the provisions of the first respondent's statute to bolster the argument that the internal statute governs the powers and functions of the first respondent's Vice Chancellor and it's Council. Contrary to the first respondent's contention that the Vice Chancellor is the first respondent's ultimate disciplinary authority, I was referred to section 13(3)(c) of the internal Statute where it is recorded that the Council determines the conditions of, the disciplinary provisions and privileges and functions of its employees, and may in the manner set out in the disciplinary rules, suspend or dismiss any employee of the first respondent. My attention was further directed at section 13(4) where it is stated that the Council may not delegate any of the functions referred to in sub-paragraph 3. The main argument advanced on behalf of the applicant was that from the sections referred to it is evident that the first respondent's Council, and not its Vice Chancellor, is vested with disciplinary authority.

[31] It was submitted further that the first respondent's internal review proceedings were instituted on an ad hoc basis by the Vice Chancellor and not in terms of a policy or procedure adopted by the first respondent as required by the internal Statute. The applicant considers the facts in Viedge v Rhodes University[5] to be similar with the facts in the present case. In Viedge the Court held that the disciplinary code forms part of the employment contract and that the applicant had a right to be dealt with in terms of his employment contract. It was submitted that the finding in Viedge is in line with the decision of the Labour Court in the matter of Solidarity and Others v SABC.[6] The applicant also sought reliance on an article by Carl Mischke[7]. In that article reference is made to BMW (South Africa) (Pty) Ltd v Van der Walt[8] and Country Fair Foods (Pty) Ltd v Commissioner for Conciliation Mediation and Arbitration and Others[9].

[32] It was submitted on behalf of the applicant that there are no exceptional circumstances that warrant the first respondent to interfere with the findings of the chairperson and the sanction imposed. On a proper consideration of the internal Statute, the first respondent's position is incorrect and that alone is dispositive of the first respondent's case.

[33] With regards to urgency, Mr Miller submitted that there is no basis upon which the first respondent seeks to attack the applicant for inactivity from 28 August 2020 to the launching of the application on 16 November 2020, when the first respondent only provided the applicant with the grounds upon which it seeks to hold the internal review on 10 November 2020 in an affidavit exceeding 50 pages. This contention is premised on the fact that the applicant was invited by the first respondent on 4 November 2020 to uplift the documents pertaining to the contemplated review proceedings. According to the applicant

it was only upon institution of the review process that it became clear to him what the first respondent's grounds of review are. The first respondent's intention to proceed with the internal review process was only communicated to the applicant on Friday, 13 November 2020 and the applicant launched this application on Monday, 16 November 2020. In this regard the first respondent was accused of unnecessarily creating urgency in this matter.

[34] Mr Smuts SC appearing with Ms Molony, counsel for the first respondent submitted that it is misleading to suggest that the CCMA does not have an expedited process. The dispute between the applicant and the first respondent could have easily been resolved at the CCMA. The application was not urgent and the applicant was bound by the Uniform Rules. The applicant's papers fail to comply with Rule 6(12) of the Uniform Rules of Court. It was submitted further that urgent relief is available to employees who have been dismissed, and this was not the position with the applicant. My attention was drawn to the fact that the CCMA referrals predate the hearing of this matter by two (2) weeks, then after forum shopping, the applicant finally decided to withdraw the referrals at the CCMA and approach this Court on urgent basis. It was contended further that from the above it is clear that this was a classic case of self-created urgency, and that this case falls to be dismissed for want of urgency alone.

[35] It was submitted further that nowhere in the applicant's papers does he contend that he cannot be afforded substantial redress in the future.[10] The applicant offered no explanation why he seeks a final relief on abridged time frames. In this regard I was referred to several authorities including the Association of Mine Workers & construction Union & others v Northam Platinum Ltd & another[11] and Steenkamp and Others v Edcon Ltd.[12]

[36] With regard to the internal review process, it was submitted that the Mischke article and the cases that are referred to in the article are of no assistance to the applicant however, they support the position of the first respondent. It was further submitted that the proposition that I should not consider fairness in determining this application because it is a contractual dispute was without foundation in law and ought to be rejected.

[37] The first respondent's decision to hold an internal review was supported by clause 2.61 of the disciplinary code. In this regard it was submitted that it was impractical to expect the Council to be convened every time a disciplinary hearing is required therefore it was for that reason that the Vice Chancellor has the power to decide on day to day issues of the first respondent without the need to constantly approach the Council.

[38] The applicant was criticised for approaching the Court on the basis that he seeks to enforce his rights in terms of the contract of employment. It was submitted that the conditions of employment set out in the applicant's employment contract are regulated by the Labour Law principles. The employment contract was concluded in the arena of Labour Law, therefore, fairness, and fairness alone is the yardstick in this application. Furthermore, the first respondent contends that the disciplinary code was concluded in 2019 whereas the contract of employment with the applicant was concluded in 2017, therefore, this particular disciplinary code did not exist at the time.

[39] In any event the applicant has not sought to attack the procedural fairness of the disciplinary hearing nor does he attack the procedural fairness of the contemplated internal review process. There is no suggestion on the founding papers that the proposed review proceedings would be unfair, so does the first respondent contend.

[40] I have considered the leading authorities in the issue of urgency and given the protracted dealings that preceded the launching of this application, more particularly annexures "FAS", and "FA6" which sought to advise the applicant that the first respondent considered the findings and the sanction of the chairperson to be grossly unreasonable and unacceptable therefore it intended to lodge an internal review process. Indeed, the applicant has had opportunities to refer this dispute to the CCMA, and he withdraw the said referrals and his reasons for taking such a step are not apparent from the papers before me.

[41] Considering the exchange of correspondence between the applicant and the first respondent, I am of the view that the applicant cannot claim to have been taken by surprise by the setting down of the internal review hearing. In my view the applicant's allegations do not comply with a rule 6(12)(b) which requires him to set out explicitly the circumstances rendering the matter urgent. The applicant's reasons

why he thought he could not get substantial redress at a hearing in due course were set out vaguely in his founding papers.

[42] It is trite in our law that forum shopping by litigants is not desirable. Once a litigant has chosen a particular cause of action and system of remedies he should not be allowed to abandon that cause as soon as a negative decision or a particular event is encountered. [13]

[43] Undoubtedly, as early as 28 August 2020 the applicant became aware of the attitude and the intentions of the first respondent regarding the overall outcome of the disciplinary hearing. This is evident from FAS and FA6. Only on 16 November 2020 did the applicant decide to approach this court on urgent basis. In my view the applicant has abused the processes of this court by claiming that the matter is urgent. I am of the firm view that the urgency was self-created, and considering the trite legal principle in our law, self-created urgency does not pass muster for purposes of rule 6(12). I conclude that there was no basis upon which the applicant approached this court seeking final relief on urgent basis. On this point alone this application must fail.

[44] I now turn to deal briefly with the intended internal review proceedings.

[45] I am not persuaded that the issue between the parties solely arise out of and concerns applicant's contractual entitlement. I disagree with the contention of the applicant that this matter falls to be determined on a purely contractual approach and that the applicant's contract expressly incorporated the disciplinary code as it was found to be the case in the Viedge matter. Both the Benyon[14] and the Viedge decisions are distinguishable from the facts of the present matter.

[46] In Benyon, the university conceded that the disciplinary code in issue was annexed to the contract of employment of the applicant, In Benyon, it seems to me that the most pressing issue that the Court considered was whether the applicant had properly pleaded a case for the final interdictory relief that it sought.

[47] In Viedge the first respondent had taken liberty of incorporating a website link where a copy of the disciplinary code should be downloaded. It seems to me that it was the intention of the first respondent to incorporate that particular copy of the code into Mr Viedge 's employment contract, nonetheless there was a dispute with regards to the applicable disciplinary code. In the matter before me the first respondent has alluded to the fact that at the time it entered into a contract of employment with the applicant the disciplinary code in which the applicant significantly relies, had not come into effect during 2017 when the contract of employment was signed. Therefore, it was submitted that the first respondent could not have intended to incorporate the said disciplinary code into the contract of employment.

[48] I take Mr Smuts point that the code applies equally to all the employees of the first respondent as it is common cause that the code is a collective agreement which operates under the provisions of the Labour Relations Act. The applicant's contract was entered into in October 2017 whereas the code came into effect on 30 June 2019 and in my view it is precisely the reason the applicant's employment contract specifies at paragraph 1.3 thereof that:

':Any policies or provisions, which may from time to time be issued by Rhodes University and with due regard to substantive and procedural

fairness, be made binding upon you."

[49] I find it necessary to have regard to clause 16.2 of the employment contract where the parties agreed that the conditions of service of the applicant are regulated by the Basic Conditions of Employment

Act[15] , the Labour Relations Act as amended, Occupational Health and Safety Act[16], the Compensation for Occupational Injuries and Diseases Act[17].

[50] Even if one considers this matter on the perspective of the applicant, the code is a collective agreement therefore it is founded on the Labour Law principles such as the principle of natural justice, equity and fairness which must be adhered to at all times in dealing with the disciplinary processes.

[51] I agree, the disciplinary code does not explicitly cater for an internal review process however, it is incontrovertible that the internal review is in line with existing case law authority and is in harmony with the provisions of the disciplinary code.

[52] Paragraph 2.5 of the code lists the Labour Relations Act as one of the relevant legislations. I am therefore, of the considered view that the applicant's contract of employment must be interpreted within the context of applicable labour law principles which are based on the fundamental principle of fairness.

[53] Whether the first respondent is entitled to launch an internal review process is an issue which has been sufficiently traversed in a number of court decisions in our country. In the case of Solidarity on behalf of Van Rensburg v Rustenburg Base Metal Refineries (Pty) Ltd[18], C E Watt-Pringle SC, sitting as an Arbitrator remarked as follows:

"The majority decision in the BMW (SA) (Pty) Ltd case rescues employers from retaining in employment those employees whose conduct has broken the trust relationship merely because a presiding officer has been unduly lenient. However, the right to review the sanction imposed by a presiding officer appointed in terms of a disciplinary code almost invariably arises in one of two situations:

(i) Where the facts available to the employer at the time of the disciplinary hearing did not adequately illustrate the gravity of the employee's conduct;

(ii) Where the presiding officer's decision was so aberrant, given the facts before him or her, as to warrant the inference of ma/a tides or a failure to apply the mind ; or

(iii) Where the disciplinary code has been flaunted. "

[54] Watt-Pringle SC noted further that it was not clear from the authorities whether an employer is entitled, unilaterally to review its own disciplinary actions in a manner not expressly or by necessary implication catered for in its disciplinary code on the grounds that the Labour Court would be entitled to review the award of a CCMA Commissioner, who had decided to reinstate a dismissed employee. However, that he would assume in the company's failure that it was entitled to do so because:

"(i) disciplinary codes constitute guidelines, and procedural deviations are permitted where they are of form rather than substance and if they do not prejudice the employee;

(ii) it is the presiding officer's duty to apply the disciplinary code and the standards of conduct set by the employer; and

(iv) even in criminal law, a rehearing is permitted if a trial was vitiated by a material irregularity.

[55] I am satisfied that the first respondent has demonstrated on the papers before me that it considers the chairperson 's factual findings and sanction imposed to be grossly unreasonable, inappropriate, and shockingly unreasonable to the extent that it justifies interference on review.

[56] I do not understand the disciplinary code and the statute to place any restrictions on the discretion of the Vice Chancellor to launch internal review process. Consequently, I am of the view that the internal review process is not ultra vires the scope of the Vice Chancellor, and that the applicant would have substantial recourse if he is aggrieved by the procedural or

substantive aspects of the review hearing. Having regard to annexure FA10 (the substantive founding papers in the internal review) I am inclined to accept that the applicant will not be prejudiced, if there are any issued of procedure and fairness, the applicant is entitled to raise arguments at such hearing.

[57] In the result, the following order issues:

The application is dismissed with costs, such costs to include costs of two el, where applicable.

JIKELA AJ

JUDGE OF THE HIGH COURT

APPEARANCES

Counsel for the Applicant: Adv. Miller

Instructed by: Wheeldon Rushmere and Cole Attorneys, Mr. vd Veen

Counsel for the Respondent: Adv. Smuts S.C. and Adv. Molony

Instructed by: Netteltons Attorneys, Ms. Pienaar

Heard:

25 November 2020

Delivered: 4 December 2020

[1] Annexure "FAS" at pages 90 to 92

[2] Annexure "FA4.5" at pages 78 to 82

[3] Annexure "4.6" at pages 84 to 88

[4] 4 "I direct that this matter proceeds on the following timetable: 1.1 The matter will be heard on Wednesday, 25 November 2020 at 09h30 or as soon as the Duty Judge may hear the matter; 1.2 Notice of opposition to be filed on or before Wednesday 18 November 2020; 1.3 Answering affidavit to be filed on or before noon , Monday 23 November 2020; 1.4 Replying affidavit to be filed by noon, Tuesday , 24 November 2020; 1.5 Parties to file heads of argument as soon as they are able but no later than close of business, Tuesday , 24 November 2020. "

[4] 4 "I direct that this matter proceeds on the following timetable:

1.1 The matter will be heard on Wednesday, 25 November 2020 at 09h30 or as soon as the Duty Judge may hear the matter;

1.2 Notice of opposition to be filed on or before Wednesday 18 November 2020;

1.3 Answering affidavit to be filed on or before noon , Monday 23 November 2020;

1.4 Replying affidavit to be filed by noon, Tuesday , 24 November 2020;

1.5 Parties to file heads of argument as soon as they are able but no later than close of business, Tuesday , 24 November 2020. "

[5] Viedge v Rhodes University and others [2018] ZAECGHC 133; [2019] 3 BLLR 318 (ECG).

[6] Solidarity and Others v South African Broadcasting Corporation [2016] ZALCJHB 273; 2016 (6) SA 73 (LC}; (2016) 37 ILJ 2888 (LC}; [2017] 1 BLLR 60 (LC).

[7] Contemporary Labour Law volume 19, Article No 2, September 2009.

[8] [2000] 21 ILJ 113 (LAC); BLLR 121 (LAC).

[9] [2003] 2 BLLR 134 (LAC)

[10] Caledon Street Restaurants CC v D'Aviera 1998 JDR 0116 (SE), Malawu v The MEC for Co-Operative Governance and Traditional Affairs , Eastern Cape 2020 JDR 1365 (EG) at pg. 4

[11] [2016] 11 BLLR 1151 (LC).

[12] 2016 (3) SA 251(CC).

[13] Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC); (2010) 31 ILJ 296 (CC); [2009] 12BLLR 1145 (CC) at para 57

[14] Benyon v Rhodes University and another [2016] ZAECGHC 161; [2017] 4 BLLR 423 (ECG).

[15] Basic Conditions of Employment Act 3 of 1998 as amended.

[16] Occupational Health and Safety Act 885 of 1993 as amended.

[17] Compensation for Occupational Injuries and Diseases Act 140 of 1993 as amended

[18] [2007] 9 BALR 8740 (P).