Nkadibeng and Another v Director General: Department of Trade and Industry (92073/15) [2020] ZAGPPHC 146 (5 May 2020)

IN

THE

HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 92073/15

In the matter between:

MANTLADI

BETHUEL

NKADIBENG

First Applicant

MPE

GUGULETHU SAKO

Second Applicant

AND

DIRECTOR GENERAL: DEPARTMENT

OF

TRADE AND

INDUSTRY

First Respondent

CHAIRPERSON,

DISCIPLINARY ENQUIRY

DEPARTMENT

OF TRADE AND INDUSTRY

Second Respondent

JUDGMENT

SARDIWALLA J:

[1] The applicants seek to review and set aside the decision made by the second respondent to dismiss the applicants after conducting a disciplinary hearing contrary to a court order handed down by Pretorius J on 3 December 2015.

[2] By agreement between the parties both applications were consolidated as they have similar facts.

Background

[3] On 2 December 2013 the applicants were served with suspension letters, however no steps were taken to initiate the disciplinary hearing until July 2015 when the applicants were served with notices to appear together with charges for a disciplinary hearing scheduled for 6 and 7 August 2015.

[4] The disciplinary hearing scheduled for 6 August 2015 did not proceed due to the unavailability of a Chairperson, however it was agreed between the parties that both parties would be entitled to legal representation.

[5] After some time and during an application to compel the respondents to provide required documentation the respondents unilaterally withdrew the applicants’ rights to legal representation at the disciplinary hearing.

[6] Prior to the disciplinary hearing scheduled for 4 December 2015, the applicants launched an urgent application to enforce the agreement of 6 August 2015 regarding their right to legal representation at the disciplinary hearing.

[7] The Court granted the application on the basis that the applicants were invoking their contractual rights to an agreement, the existence of which was not denied by the respondents. Therefore, due to the failure of the respondents to file answering affidavits, the

allegations as set out in the founding affidavit were accepted as established facts.

[8] On 4 December 2015 the disciplinary hearing was postponed for provision of the documentation referred to in the application to compel by the respondents.

[9] The application to compel was still pending when the respondents decided to proceed with the disciplinary hearing which it scheduled on several occasions but which finally took place on 13 May 2016 in the absence of both applicants, despite the court order dated 3 December 2015 and effectively dismissed them from their employment.

[10] The conduct of the respondents at the hearing of 13 May 2016 initiated the current application to review and set aside the decision of the second respondent dated 13 May 2016.

The Applicant’s Claim

[11] The first statement made in the applicant’s founding affidavit, following the citation of the parties, is that the court has the necessary jurisdiction by virtue of the fact that the cause of action arose within its areas jurisdiction. The applicants go on to speak of the events that arose from their suspension in December 2013 to the final disciplinary hearing that was held in their absence where they were ultimately dismissed, asserting that it was done in violation of the court order dated 3 December 2015 and contra the audi alteram partem rule. Further that section 157(2) of the Labour Relations Act. Act 66 of 1995 as amended provides that the High Court has concurrent jurisdiction to adjudicate upon labour-related disputes and therefore it is claimed that the decision of the second respondent on 13 May 2016 be reviewed and set aside together with a declaration that the proceedings of 9th February 2016 were conducted unlawfully.

[12] The respondents contend that this court does not have jurisdiction to adjudicate the matter as dismissals from employment fall exclusively within the jurisdiction of the Labour Court which is governed by the LRA and which provides dispute resolutions mechanisms to deals with dismissals which are procedurally unfair.

The Jurisdictional Challenge

[13] In Kwemaya v National Commissioner, Correctional Services and another (13535/2016) [2017] ZAKZDHC 33 at paragraph 27, Olsen J referred to the case Makhanya v University of Zululand 2010 (1) SA 62 (SCA) at paragraphs 71 and 72, where it was held that the proper approach for a court confronted with a claim, and an objection

that the court lacks jurisdiction to entertain the claim, is to accept that the claim before the court is “a matter of fact”.

If a claimant says that the claim arises from the infringement of a right to enforce a contract, then the court must deal with it accordingly. When the claimant says the claim is to enforce a right created by the Labour Relations Act then that is the one before the court, as a matter of fact. When the claim is said to be for the enforcement of a right derived from the Constitution then that as a fact is the claim. The question as to whether the claim is bad is beside the point. The court went on to say that a claim which exists as a fact is not capable of being converted into a claim of a different kind by the mere use of language; and a court cannot under the guise of “characterising” a claim purport to convert the claim placed before the court into a claim of another kind.

[14] He went on to say that approaching the matter in the light of what was said in Makhanya supra, would mean that one should reach an understanding about what a claim is by having regard only to the label attached to it by the claimant; and not by looking to the elements of the cause of action pleaded by the claimant in order correctly to label the claim where the claimant might have done so incorrectly. His view was that Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC) illustrates that Makhanya should not be read that way and he went on to state the following:

“[29] Gcaba concerned a policeman who had applied for a position unsuccessfully. He approached the High Court with an application to review the decision not to appoint him. The High Court decided that it lacked jurisdiction to entertain the application because it was an employment matter. Before the Constitutional Court the applicant contended that his claim was from inception one which fell under PAJA, as he sought to vindicate his right to just administrative action. The respondents contended that the applicant’s claim was a labour matter which had to be adjudicated through the “finely tuned mechanisms provided for in the LRA”. The court in Gcaba held that before addressing the issue of jurisdiction, and indeed in order to address that question, the court had to decide whether the conduct complained of by Mr Gcaba was administrative action. (See paragraph 63 of the judgment.) Having found that it was not, the court held (in paragraph 75 of the judgment) that where the court’s jurisdiction is challenged in limine at the outset, the pleadings and, in motion proceedings, also the contents of the supporting affidavits, must be interpreted “to

establish what the legal basis of the applicant’s claim is”. If, “properly interpreted”, that enquiry establishes that the applicant is asserting a claim within the exclusive jurisdiction of the Labour Court, the High Court would lack jurisdiction. On that basis the decision of the High Court in Gcaba was found to have been correct.

[30] It seems to me that I must follow the same approach as was followed in Gcaba. There (in paragraph 64 of the judgment) it was held that where a grievance is raised by an employee relating to the conduct of the State as employer, and there are “few or no direct implications or consequences for other citizens”, then the conduct complained of is not administrative action. Here, perhaps even more than in the case of Mr Gcaba, the conduct of the department in which the applicant was employed carried no implications and generated no consequences for anyone outside the particular relationship between the applicant (as employee) and her employer, the State. The applicant wrongly pleads in her papers that what happened is governed by PAJA. She erroneously attaches the lable “administrative action” to the conduct she complains of. For that reason, following Gcaba, the conclusion must be that this court lacks jurisdiction if the characterisation of the conduct of the State as administrative action is the only basis upon which the applicant asks the court to decide her claim[1].”

[15] The fundamental point argued by the applicant in that matter was that it was a legality review, and that the court has jurisdiction to entertain all legality reviews. This is not the argument of the applicants in the present matter as they have no asserted any right under PAJA. Their argument is simply that the section 157(2) of the LRA confers powers of concurrent jurisdiction on this court to hear labour related disputes. However, what must be borne in mind is that the concurrent jurisdiction contemplated by section 157(2) of the LRA can only be engaged with respect to rights entrenched in Chapter 2 of the Constitution.

[16] It is therefore important to consider the applicants’ interest in this matter. In Giant Concerts CC v Rinaldo Investments (Pty) Limited 2013 (3) BCLR 251 (CC) Cameron J dealt with the requirements to establish own interest standing in a legality challenge. The following appears in paragraph 35 of the judgment.

“Hence, where a litigant acts solely in his or her own interest, there is no broad or unqualified capacity to litigate against illegalities.

Something more must be shown.”

[17] The requirement to be established is whether the illegality directly affects his or her rights or interests, or potential rights or interests. The applicants’ standing is that the disciplinary proceedings were convened unlawfully and against the directive of this court to permit the applicants legal representation, conduct which they claimed extinguished their right to be heard. However, the right protected by the order of the 3 December 2015 arose out of a contractual agreement between the parties. The current rights applicants seek to enforce are solely related to the employment contracts and disciplinary codes. Ultimately the applicants have come before this court to vindicate employment rights which are protected by the provisions of section 23 of the Constitution, but whose task to protect those rights are lodged in the structures established by the Labour Relations Act.

[18] In Motor Industry Staff Association v Macun N.O. and Others 2016 (5) SA 76 (SCA) the court considered an application which had been made to the High Court for an order reviewing and setting aside the extension of the period of operation of a collective agreement, which was said to have been done unlawfully. The court endorsed that it had no jurisdiction to hear the matter. Citing paragraph 21 of the judgment in Nicro (supra) Navsa JA stated the following in paragraph 21 of his own judgment.

“One cannot assert the ‘right’ to the principle of legality in a vacuum. In essence, the complaint by the appellant is that the Minister, in purporting to extend the collective agreement to non-parties, acted beyond the powers conferred upon him in terms of s 32 of the LRA. The protections, both procedural and substantive, that exist in relation to collective bargaining are to be sourced in the LRA and not in the ‘principle of legality’.”

[19] This was similarly endorsed in the Supreme Court of Appeal in South African Municipal Workers Union and Others v Mokgatla and Others 2016 (5) SA 89. The issue was whether the High Court had jurisdiction to determine a dispute concerning the expulsion of members of a trade union allegedly in breach of the union’s constitution. The court referred to paragraph 23 of the judgment in Macun, and held that the question to be asked was whether the case engaged a jurisdiction shared by the High Court and the Labour Court because it was premised on a violation of a right entrenched in Chapter 2 of the Constitution, or whether it arises simply out of the LRA. In the latter case the High Court has no jurisdiction. Applying that reasoning, the court in Mokgatla had the following to say in paragraph 14 on the subject of the application of the principle set out in Macun.

“In relation to s 158(1)(g) the learned Judge found that the relevant question in determining whether the Labour Court’s jurisdiction was exclusive depended on whether it was a review of the exercise of a power under the LRA. In other words, did the case fall within s 158(1)(g)? If so, the Labour Court’s jurisdiction was exclusive. The same principle is applicable here. If the case falls within s 158(1)(e)i), as it does, then the jurisdiction of the Labour Court is exclusive. The decision in Macun is therefore decisive of the outcome of this appeal. There is no reason to differentiate between one ground of jurisdiction under s 158(1) and another.”

[20] This case falls directly under s 158(1)(h) of the Labour Relations Act. This court is being asked to review a decision taken or an act performed by the State in its capacity as employer. The action is the dismissal of the applicants. Applying the test above, the answer must be that this court is being asked to exercise a power with respect to a matter within the exclusive jurisdiction of the Labour Court; unless, because the case is about a right entrenched in Chapter 2 of the Constitution, the High and Labour courts would both have jurisdiction under section 157(2) of the LRA. The applicants did not state which Chapter 2 rights asserted they relied on and in this case I cannot find any to justify the invoking of the rights in 157(2) of the LRA. The only argument by the applicants is that the LRA does not make provision for a review of a decision by a disciplinary chairperson.

[21] In Steenkamp v Edcon 2016 (3) SA 251 (CC) the Constitutional Court majority judgment stressed the role of the LRA as the instrument for realisation of rights in terms of section 23 of the Constitution, at paragraph 116 the court said the following;

“[116] I think that the rationale for the policy decision to exclude unlawful or invalid dismissals under the LRA was that through the LRA the legislature sought to create a dispensation that would be fair to

both employers and employees, having regard to all the circumstances, including the power imbalance between them. In this regard a declaration of invalidity is based on a “winner takes all” approach. The fairness which forms the foundation of the LRA has sufficient flexibility built into it to enable a court or arbitrator to do justice between employer and employee. For example, where a dismissal is unlawful by virtue of the employer having failed to follow a prescribed procedure before dismissing an employee and the dismissal is declared invalid, in law the employee is regarded as never having been dismissed and will be entitled to all arrear wages from the date of the purported dismissal to the date of the order. Under the LRA a dismissal will be recognised as having taken place, irrespective of whether the dismissal is held to have been automatically unfair or unfair because there was no fair reason for it, or because there was no compliance with a fair procedure in effecting it.”

[22] The applicants in this case seek to avoid the remedies and the jurisdiction of the LRA and the Labour Court by arguing that the consequence of that the respondent’s failure to comply with the court order dated 3 December 2015 issued by this court permitting the applicants legal representation at the disciplinary hearing automatically gives this court concurrent jurisdiction. They aver that it is not unfairness but unlawfulness of the dismissal that is being challenged. However, the conduct complained of occurred in disciplinary proceedings is governed by our labour law and specifically in terms of section 186 (2) (b) which deals with unfair suspensions of employees and unfair disciplinary action. Therefore, the LRA has exclusive jurisdiction over the decision of the disciplinary chairperson which is specifically dealt with as an unfair labour practice.

[23] In Solidarity v SABC 2016 (6) SA 73 (LC). There the learned Judge in the Labour Court was confronted with the question as to whether the Labour Court could provide remedies for “unlawful or invalid dismissals”, in the light of the supposed fact that the Constitutional Court in Edcon supra had held that the LRA does not provide remedies for unlawful or invalid dismissals. The court in the SABC case illustrated that a legality challenge, or review of a decision to dismiss, continues to exist.

[24] I however must disagree with the interpretation of the judgment in Edcon in the SABC case, that although on the surface of it the LRA does not seem to provide ant express remedies for unlawful or invalid dismissals, that such exclusion was due to the statute’s fairness protections as held in the majority judgment of Zondo J in Edcon supra at paragraph 49, where Cameron J in the minority judgment said the following;

“The judgment of Zondo J, which I have had the pleasure of reading, finds that the LRA does not expressly confer a right to be dismissed lawfully. It bolsters this conclusion through an exposition of the LRA’s predecessors. It notes the removal of a criminal sanction for unauthorised conduct. It reasons that, since the LRA does not expressly provide for a right to a lawful dismissal, a litigant is not entitled to a declaratory remedy when dismissed in breach of the LRA’s provisions. This approach narrows the entitlement to a lawful dismissal. It infers from the absence of an express provision in the statute that protection against unlawful conduct must be understood to have been absorbed into the statute’s fairness protections.”

[25] The applicants’ in this case do not deny the fairness of their dismissals but rather rely on the unlawfulness of the disciplinary proceedings to approach this court on the principle of audi alteram partem, to seek this court’s intervention. Although the right to legal representation was derived from the earlier agreement between parties, their right to a fair disciplinary process would be derived from the applicable disciplinary codes, the purpose of which is to advance the realisation of the right under s 185(b) of the LRA not to be subjected to unfair labour practices.

[26] In the circumstances I conclude that this court has no jurisdiction to determine the present application.

[27] I according make the following order:

1. The application is dismissed with costs.

C

M SARDIWALLA

JUDGE

OF THE HIGH COURT

Appearances:

For the Applicant: Adv.: M Snyman SC & Adv.: B. Ford

Instructed by: Mthembu Sibiya Attorneys

For the Respondents: Adv.: P Seleka SC & Adv.: F Karachi

Instructed by: State attorney Pretoria

Date of Hearing: 21 October 2019

Date of Judgment: 5 May 2020