Ngobeni v Minister of Communications and Others (J 1603/14) [2014] ZALCJHB 240 (11 July 2014)

REPUBLIC OF SOUTH AFRICA

Not reportable

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

JUDGMENT

CASE NO: J 1603/14

In the matter between:

WISANI EVIDENCE NGOBENI...........................................................................................Applicants

And

MINISTER OF COMMUNICATIONS........................................................................First Respondent

DIRECTOR-GENERAL OF THE

DEPARTMENT OF

COMMUNICATIONS...............................................................................................Second Respondent

ADV LESEGO MONTSHO, SC..................................................................................Third Respondent

Heard: 08 July 2014

Delivered: 11 July 2014

Summary: (Urgent interdict for interim relief setting aside the termination of employment on grounds of unlawfulness-alleged non-compliance with a contractual obligation to hold a fair disciplinary enquiry before termination-considerations applicable to an application for specific performance of such obligations).

LAGRANGE, J

Introduction

[1] This application is one of a number of applications launched by Mr WE Ngobeni (‘NX’) arising out of disciplinary action taken against him by the Department of Communications, his employer. On 27 June 2014 the respondent dismissed him following a disciplinary enquiry, which was concluded in his absence. He seeks interim relief, pending determination of a final order, setting aside his termination and ordering his reinstatement pending the employer complying with the requirements of a fair disciplinary process as set out in the Senior Management Service (‘SMS’) Handbook.

[2] NX claims that his termination was in breach of the provisions of Handbook in that it did not comply with his clear right to a fair hearing in a disciplinary enquiry in terms of clause 2.2 of the Handbook. More particularly, he had two fundamental complaints about the conduct of the proceedings by the chairperson, Advocate L Monsho SC (‘Montsho’).

[3] The first concerned the fact that he permitted the employer to be represented in the enquiry by legal practitioners contrary to clause 2.7 (3) (e) of the Handbook.

[4] Secondly, the applicant claimed that he had been unlawfully deprived of the right to a hearing before a presiding officer, who according to the notice of the disciplinary enquiry would be someone “who is entirely independent of the circumstances surrounding the investigation and the bringing of these complaints against you”. On 13 June 2014, more than twenty days into the disciplinary hearing, an incident occurred when Montsho and one of the employer’s legal representatives in the enquiry remained in the hearing venue during a comfort break. The recording facility had not been switched off and a conversation was recorded in which Montsho appeared to share some of her views about what she perceived to be the applicant’s contemptuous attitude towards everyone and whether he could return to his department in the event he was found guilty of the charges. It seems that the context in which these remarks were made followed from the applicant’s behaviour in the enquiry just before it was adjourned for the comfort break. The chairperson apparently also made reference to a member of the HR department who had been present but who had not participated in the enquiry.

[5] The applicant was able to obtain a transcript of this recording and claimed this demonstrated bias against him on the part of the chairperson because he felt it indicated that the chairperson was already contemplating the question of a sanction and the reference to the member of the HR staff suggested contact had taken place between the chairperson and that staff member outside of the proceedings.

[6] He brought an application for the chairperson’s recusal, which she refused. Following this ruling, the applicant sought a postponement of the enquiry in order to review this ruling, but Montsho made it clear she would proceed with the enquiry until such time as a court order prevented her from doing so. The applicant then left the enquiry believing that he was justified in doing so given her ruling in the face of what he construed as damning evidence of potential or actual bias on her part.

[7] In more general terms, the applicant claimed that his dismissal was invalid because in the circumstances the chairperson had no right to proceed with the enquiry in his absence and by proceeding he was deprived of further procedural rights in breach of his contractual entitlements under the SMS Handbook. These concerned inter alia the opportunity to lead his own witnesses (which he had not yet done by that stage of the enquiry), the right to be informed of both the chairperson’s findings and the reasons her findings on the misconduct itself, as well as the opportunity to present circumstances in mitigation after receiving those findings.

The nature of the applicant’s claim

[8] Although the applicant alluded to general legal principles governing a ruling on a recusal application and to the validity of subsequent proceedings in circumstances where a judicial officer wrongly decides to dismiss the recusal application, the applicant placed fundamental emphasis on his right to insist on the specific performance of the employer’s contractual obligation in terms of the SMS Handbook to afford him a fair disciplinary process. He argued that his dismissal in the absence of complying with that obligation was lawfully invalid. He maintained that by dismissing him without having complied with the requirements of a fair hearing in the Handbook, the employer had repudiated his contract. Consequently, he had elected to insist on holding the employer to the contract by means of an order for specific performance. This entailed setting aside his termination and ordering his reinstatement until such time as the employer complied with its obligations to conduct a fair disciplinary procedure in accordance with the Handbook.

[9] The respondent misconstrued the applicant’s claim as a claim based on unfairness and on that basis argued the court had no jurisdiction to entertain the claim which ought to be determined through arbitration under the provisions of the LRA. Clearly the applicant’s claim rests on enforcement of an alleged contractual right alone, and if the requirements for an order of specific performance are satisfied it is possible the court might exercise its discretion in favour of granting such relief. Where a party is able to prove a clear breach of a material term of a contract, ordinarily, a court ought to be prepared to order the defaulting party to rectify the breach and should not confine the wronged party to its alternative claim of damages[1]. My own prima facie view is that the facts of this case make it an instance where the order would be inappropriate to grant, even if I assume that the

applicant’s claim that non-compliance with the Handbook renders the subsequent dismissal invalid and unlawful is a good one in law.

[10] Nevertheless it is not necessary to analyse this question further because my reason for dismissing the application rest not on the merits of the applicant’s claim for specific performance as such, but on the reasons set out below relating to an application for interim relief, which concern the existence of suitable alternative relief and the balance of convenience. I have also assumed in the applicant’s favour that the application for interim relief is urgent, even though this is a debatable issue.

[11] The applicant complains that he is suffering a lack of income and a diminution of his moral standing as a result of his dismissal. However, if his dismissal is declared invalid in due course he would be entitled to reinstatement and his reputation would be restored, albeit at a later date.

[12] In saying this, I must stress I am assuming in the applicant’s favour, without purporting to decide the issue, that he would be contractually entitled not merely to oblige his employer to comply with certain procedures in the course of disciplining him, but that in law, a breach of an obligation to comply with those procedures necessarily means any subsequent dismissal was unlawful. In my view whether such relief is legally

competent will depend on whether the contract in question can sustain such an interpretation. In my view, it is by no means axiomatic that a failure to fulfil procedural obligations imposed by contract necessarily invalidates the lawfulness of the termination by the other party. The situation may be different where it is the principle of the legality of the exercise of a statutory which is relied on.

In any event, the applicant was not able to explain why he could not obtain substantially the same relief he seeks now on an urgent basis in the course of ordinary litigation. Assuming it is legally competent to grant such relief it is not relief that can only be obtained on an urgent basis. This much he is aware of in seeking the relief on an interim basis pending a final determination of the matter. Consequently, even if the applicant does have a clear right to obtain the relief he seeks, which is by no means clear, he has failed to demonstrate that no suitable alternative remedy is available to him or that he will suffer irreparable harm if he cannot obtain immediate relief.

[13] Secondly, if the applicant is subsequently proven right in proceedings in due course he will be entitled to full recompense and his position will be fully restored, whereas if interim reinstatement is granted and the respondents are ultimately successful, the employer will have been compelled to extend the employment and remuneration of someone it was not obliged to retain and will not be able to reclaim remuneration paid to the applicant during the interim period.

[14] Thirdly, the applicant is not seeking to rectify an ongoing wrong but to rectify a past infringement of his alleged right not to be dismissed in the absence of compliance with the SMS handbook. A court will usually not award interim relief where there is no ongoing wrong. In this instance, the harm in question is the termination of the applicant’s employment which is not an ongoing event.

[15] There is no reason in light of the termination of the employment relationship and the existence of alternative remedies not to make an order that costs should follow the result.

Order

[16] The application is dismissed with costs.

_______________________

R LAGRANGE, J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: In person

FIRST RESPONDENT: B Matyolo instructed by the State Attorney

[1] See Farmers’ Co-op Society (Reg) v Berry 1912 AD 343 at 350