Nkadimeng v Director-General, Department of Trade and Industry and Another; Sako v Director-General, Department of Trade and Industry and Another (92073/2015; 92074/2015) [2015] ZAGPPHC 813 (3 December 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Date: 3/12/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

CASE NO.: 92073/2015

MANTLADI BETHUEL NKADIMENG

APPLICANT

And

CASE NO.: 92074/2015

MPE GUGULETHU SAKO

AND

DIRECTOR-GENERAL, DEPARTMENT OF TRADE AND

INDUSTRY

FIRST RESPONDENT

CHAIRPERSON, DISCIPLINARY ENQUIRY,

DEPARTMENT OF TRADE AND INDUSTRY

SECOND RESPONDENT

JUDGMENT

PRETORIUS J

(1) This judgment deals with both applications as the facts are similar.

(2) The applicants approach the court in an urgent application to request the court to authorise the applicants to continue to be legally represented in a disciplinary enquiry against them initiated on 4 August 2015. The other prayers have been abandoned by the applicants and I will deal solely with their right to legal representation.

(3) I find the matter to be urgent as the disciplinary enquiry will proceed on 4 December 2015 and therefor the court has to consider the matter and grant an order before Friday 4 December 2015.

(4) On 2 December 2013 suspension letters were issued against both applicants. No steps were taken to initiate and conclude a disciplinary enquiry until 30 July 2015. The applicants were served with notices of disciplinary enquiry with charge sheets attached to the notices. The hearing was scheduled for 6 and 7 August 2015.

(5) On 6 August the applicants attended the hearing, but found that no chairperson was available to deal with the enquiry. On 6 August the parties agreed that both applicants were entitled to legal representation during the hearing. Thereafter the respondents communicated with the applicants’ attorneys.

(6) When the application to compel the first respondent was served on 16 November 2015 the first respondent withdrew the right to legal representation and decided that the applicants have to attend and participate in the disciplinary hearing without legal representation.

(7) The respondents chose not to file an answering affidavit, but to rely on a notice in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court by submitting that the court does not have jurisdiction to hear the applications as the determination of the relief sought falls within the exclusive jurisdiction of the Labour Court. Furthermore that the applicants fail to advance any grounds in law or fact whereupon they were entitled to legal representation.

(8) Due to the fact that the respondents chose not to file any answering affidavit the allegations as set out in the founding affidavits are accepted as established facts. In Freedom Under Law v National Director of Public Prosecutions and Others 2014(1) SA 254 (GNP) at paragraph 316, the following is stated:

“The labour forums, it is correct, do indeed have exclusive power to enforce LRA rights to the exclusion of the high courts.

However, the high courts and the labour courts have concurrent jurisdiction to enforce common-law contractual rights and fundamental rights entrenched in the Bill of Rights insofar as their infringement arises from employment.” (Court’s emphasis)

(9) It is uncontested that there had been an agreement between the applicants and the respondents that the applicants would be entitled to legal representation at the disciplinary enquiry. The respondents reneged on this agreement unilaterally and the applicants submit that they are entitled to hold the respondents to the agreement. The court has to accept these facts as the respondents chose not to file answering affidavits.

(10) I must agree with counsel for the applicants that this is not a labour dispute, although it may have an impact on the disciplinary hearing. The Supreme Court of Appeal found in Fedlife Assurance Ltd v Wolfaardt 2002(1) SA 49 (SCA) at paragraph 17 at page 58:

“The 1995 Act does not expressly abrogate an employee’s common-law entitlement to enforce contractual rights and nor do I think that it does so by necessary implication. On the contrary there are clear indications in the 1995 Act that the Legislature had no intention of doing so.” (Court’s emphasis)

(11) These matters deal with the enforcement of an agreement reached by the parties. The respondents do not deny that such a contract had been entered into and the court finds that there indeed was such an agreement between the parties. The court finds that in this instance the court has jurisdiction to deal with a breach of contract.

(12) Under these circumstances I find that the respondents had correctly approached this court for the relief they ultimately sought.

(13) I make the following order:

1. The applicants are allowed legal representation in the disciplinary enquiry initiated by the first respondent on 4 August 2015 and chaired by the second respondent.

2. The respondents, jointly and severally, are ordered to pay the costs of this application, including the costs of two counsel.

_____________________

Judge C Pretorius

Case number: 92073/2015 & 92074/2015

Matter heard on: 2 December 2015

For the Applicant: Adv BP Geach, SC; Adv JPF De Klerk

Instructed by: Mthembu Sibiya Attorneys

For the Respondent: Adv TP Kruger

Instructed by: State Attorney

Date of Judgment: 3 December 2015