Ngqungwana v Port Elizabeth College and Another (P 69/2021) [2022] ZALCPE 36 (22 November 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

CASE NO: P 69/2021

MALIBONGWE NGQUNGWANA

Applicant

AND

PORT ELIZABETH CILLEGE

First Respondent

DEPARTMENT OF HIGHER EDUCATION AND

Training

Second Respondent

Heard: 19, 21 October and 10 November 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant and the First Respondent's legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 15h00 on 22 November 2022.

JUDGMENT

LALLIE, J

[1] The applicant launched this urgent application seeking, in the main, an interdict restraining the principal of the first respondent from proceeding with a disciplinary enquiry against him. The application is opposed by the first respondent. An interim order was granted in favour of the applicant and the parties were afforded an opportunity to file further affidavits. Amongst the grounds the applicant sought to rely on is the submission employee of the second respondent which, by virtue of the employment relationship they have, has the necessary authority to take disciplinary action against him.

[2] When this matter served before court on 9 October 2022, a document was filed on behalf of the first respondent in an attempt to disprove the applicant's submissions in respect of the principal of the first respondent's lack of authority to discipline him. On grounds of fairness, I adjourned the proceedings and afforded the applicant who is unrepresented, an opportunity to study the document and file an affidavit in response thereto. The applicant compiled and in his affidavit persisted with his denial that the document gave the first respondent’s principal the necessary authority.

[3] I have considered the document and the submissions on behalf of both parties. In the document, the erstwhile Director General of the second respondent exercised his powers in terms of section 42A(5) of the Public Service Act[1] (the PSA) and delegated authority to incumbents of certain posts in the second respondent. The document will hereinafter be referred to as the delegation. It was argued on behalf of the first respondent that in clause 1.1 of the delegation which defines acronyms, 'P' is defined as 'Principal (may also be known as a Director at a College)'. It defines 'TVET' as 'Technical and Vocational Education

and Training'. It was further argued that in section 16B of the delegations the power or duty to discipline L1-8; P L1-3 employees at a college is delegated to the principal. It is common cause that the applicant is a lecturer level 1 at the Port Elizabeth College.

[4] The applicant submitted that the sections of the delegation the first respondent seeks to rely on demonstrate that the delegation is given to the office of another employer whereas the delegation is supposed to be given to an employee of the second respondent in terms of section 42A(5) OF THE PSA. The applicant further submitted that if the acting principal, Ms Figg (Figg) is an employee of the second respondent, she was supposed to have received a letter from the Director of General directed at her as an employee and not to the office of the principal which she occupied. The applicant expressed the view that at all material times Figg was acting as a representative of the first respondent and not the second.

[5] Two letters were tendered on behalf of the first respondent in support of its opposition. In the first, Figg is appointed on a fixed term contract as the principal of the first respondent. The duration of the contract is a period of 6 months from 1 May 2020 or until the post is filled, whichever event occurred first. In the second, Figg's acting appointment is extended for a further 6 months with effect from 1 November 2020. The second letter was signed on 13 January 2021.

[6] The applicant's view that Figg's authority to take disciplinary action against him should have been given in a letter addressed to her directly is mistaken. So is the view that the authority could not be given Figg as she is not an employee of the second respondent. In the delegations the first respondent relied on, the Director General of the Department of Higher Education makes it abundantly clear that he was delegating authority to incumbents of the posts set out in appendix A and B of the delegations. An incumbent is an employee who is holding a position. In section 16B of the delegation the authority to discipline L1 - 8 and P L 1-3 at a college is delegated to the principal. It is common cause that the applicant is a lecturer in post level 1. When Figg issued the applicant with the disciplinary notice on 27 January 2021 her contract as acting principal had been renewed on 13 January 2021 with effect from 1 November 2020. Figg therefore had the necessary authority to take disciplinary action against the applicant.

[7] The first respondent did not tender evidence in support of its allegation that Figg is an employee of the first respondent. Even if I accept the applicant's submission that the Director General could only delegate to employees of the second respondent in terms of sec 42A (5) of the PSA, the first respondent's failure to prove that Figg was an employee of the second respondent. When she issued the applicant with the disciplinary notice is of no moment. The first respondent has proved that-at all material times Figg acted in her capacity as its principal. By virtue of her position, the authority vested in principals in the delegation vested in her as the incumbent. If she was, on the applicant's version, given the authority illegally, the authority exists and the decision she took based on it are valid until the illegality is set aside by a court of competent jurisdiction. This principle is aptly expressed as follows in Oudekraal Estates (Pty) Ltd v City of Cape Town[2].

"The proper functioning of a modern State would be considerably compromised if all administrative acts could be given effect to or ignored depending on the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognized that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside".

[8] I have considered the applicant's argument that Figg lacked the necessary authority because her contract was extended retrospectively. The argument cannot succeed because on 27 January 2021 when the disciplinary notice was issued, the letter extending Figg's acting

period for a further 6 months with the concomitant authority had already been issued. Based on the Oudekraal principle, Figg's authority to suspend the applicant was not vitiated.

[9] The applicant did not prove that Figg and therefore the first respondent lacked the authority to take disciplinary action against him. He therefore did not prove the existence of a right which needed to be protected by an interdict. His application can, in the circumstances not be granted

[10] This court may interdict an employer from taking disciplinary action against an employee in extra ordinary circumstances where failure to intervene would result in grave injustice[3]. The applicant presented no averments justifying the intervention by this court.

[11] I was given no reasons justifying a costs order against the applicant.

[12] In the premises, the following order is made:

1. The application is dismissed.

2. There is no order as to costs

Z. Lallie

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Mr Ngqungwana - In person

For the First Respondent:

Adv. Voultsos

Instructed by

BLC Attorneys

[1] 103 of 1994 as amended

[2] 2004 (6) SA 222 (SCA)

[3] Booysen v The Minister of Safety and Security and others [2011] 1 BLLR 83 (LAC)