Nkonyane v Johannesburg Roads Agency (Pty) Ltd and Another (J 787/21) [2021] ZALCJHB 144 (15 July 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J 787/21

In the matter between:

MUZIWANDILE NKONYANE Applicant and JOHANNESBURG ROADS AGENCY (PTY) LTD SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent Second Respondent

Heard: 14 July 2021

Delivered: 15 July 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 15 July 2021.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant approached this Court on an urgent basis for relief. The application is opposed by the First Respondent (the Respondent). The matter was enrolled for hearing on 14 July 2021 and due to the Covid-19 measures, the parties presented their arguments via Zoom.

[2] The Respondent filed an answering affidavit, wherein a number of relevant points in opposition to the relief sought, were raised. The Respondent also took issue with urgency.

[3] The Respondent has merit in the points taken and the argument that the matter is not urgent. However, I will exercise my discretion and deal with the merits of this case. This Court has limited resources and a meritless case like the present one, should not make its way back to Court, it should not be allocated another Court day and it should not require the attention of another Judge, as it no doubt would, if it is struck off the roll for lack of urgency or disposed of on account of a technical issue. This matter should be decided on the merits, sooner rather than later.

Background

[4] The Applicant has been employed by the Respondent as the Head of Department: Operations. On 6 October 2020 the Respondent’s Chief Executive Officer issued a notice of suspension to the Applicant in terms whereof he was suspended pending an investigation into allegations of misconduct. On 18 January 2021 the Applicant was served with a notice to attend a disciplinary hearing on 1 February 2021 and three charges of misconduct were levelled against the Applicant.

[5] The Respondent appointed an external person to chair the disciplinary enquiry as well as an external legal representative to act as the employer’s representative during the disciplinary hearing.

[6] On 1 February 2021, at the commencement of the disciplinary hearing, the Applicant’s trade union representative raised objections regarding the Respondent’s failure to comply with clauses 7.6 and 7.7 of the ‘Disciplinary Procedure Collective Agreement’

(Disciplinary Procedure). A dispute regarding the non-compliance with the Disciplinary Procedure was referred to the Second Respondent, the South African Local Government Bargaining Council (SALGBC) for determination.

[7] On 9 June 2021 the SALGBC issued a compliance order. The order reads:

“The Respondent is hereby ordered to comply with Clause 7.7 of the Disciplinary Procedure Collective Agreement within 10 days of receipt of this order, failing which the SALGBC will proceed to arbitration, to compel the Respondent to do so.”

[8] The Applicant’s disciplinary hearing was rescheduled for 22 June 2021, on which occasion the Respondent made an application in terms of clause 7.7.4 of the Disciplinary Procedure, for legal representation. The Respondent applied for leave to be represented by a legal practitioner during the disciplinary hearing. On 23 June 2021 the Applicant filed submissions in opposition of the application for legal representation. As a result the disciplinary hearing was postponed to 13 and 14 July 2021.

[9] On 29 June 2021 the Respondent’s attorneys confirmed in writing to the Applicant’s attorney of record that the disciplinary hearing would proceed on 13 and 14 July 2021.

[10] On 30 June 2021 the Applicant’s attorney responded and stated that in terms of the compliance order of 9 June 2021 the Respondent was obliged to comply with clause 7.7 of the Disciplinary Procedure within 10 days, failing which the SALGBC would proceed to arbitration to compel the employer to comply. It was recorded that the Respondent’s conduct in setting the matter down for hearing is contemptuous in light of the compliance order. The Respondent was requested to provide a written undertaking that it would not proceed with the disciplinary hearing set down for 13 and 14 July 2021, pending the SALGBC’s application to compel the Respondent to comply with the compliance order.

[11] Instead of providing the requested undertaking, the Respondent’s attorney of record responded on 1 July 2021 and stated that the Respondent had already complied with clause 7.7 of the Disciplinary Procedure. This was by making an application for legal representation on 22 June 2021, which was opposed by the Applicant. The attorney stated that the matter is awaiting the chairperson’s ruling. It was reiterated that the hearing would proceed on 13 and 14 July 2021.

[12] On 8 July the Applicant filed an urgent application with this Court, to be enrolled on 14 July 2021.

[13] There is a ‘Part A’ and a ‘Part B’ to the application. In ‘Part A’ the Applicant strangely seeks a rule nisi, pending a return date on 9 July 2021, when the matter was only enrolled for hearing on 14 July 2021. Be that as it may, in ‘Part A’ the Applicant seeks an order to interdict the Respondent from proceeding with a disciplinary hearing scheduled to take place on 13 and 14 July 2021. The Applicant further seeks an order to direct the SALGBC to proceed with arbitration proceedings to compel the Respondent to comply with the terms of the compliance order dated 9 June 2021.

[14] In ‘Part B’ the Applicant seeks to review and set aside the Respondent’s decision to proceed with the disciplinary hearing, an order to declare the appointment of the chairperson to be in contravention of clause 7.6 of the Disciplinary Procedure and an order declaring that the Respondent is in contempt of the compliance order of 9 June 2021.

[15] In my view, the Applicant can only proceed with ‘Part B’ if he succeeds to obtain the relief sought in ‘Part A’ of the application. If this Court finds that there was compliance with the compliance order of 9 June 2021, there is no basis to review the decision to proceed with the disciplinary hearing or to find that the Respondent acted in contempt of the compliance order. Whether the chairperson’s appointment is in contravention with clause 7.6 of the Disciplinary Procedure, is an issue that was already referred to and decided by the SALGBC and it is not for this Court to determine.

Analysis

[16] The compliance order issued by the SALGBC on 9 June 2021 ordered the Respondent to comply with Clause 7.7 of the Disciplinary Procedure.

[17] Clause 7.7 of the Disciplinary Procedure provides for the appointment of an employer representative to represent the employer and serve the function of prosecution in a disciplinary hearing. It provides for the appointment of a suitably qualified person, employed by the municipality, if that is not possible, it provides for the appointment of an external person, excluding a legal practitioner.

[18] Clause 7.4 provides that neither the employer nor the employee shall be entitled to be represented by a legal practitioner in disciplinary proceedings, unless (1) both parties agree to that in writing or (2) if the presiding officer, upon receiving an application by any of the parties and having regard to specified factors, determines that it is reasonable to allow legal representation.

[19] In November 2020 the Respondent appointed a representative, being a legal practitioner. On the Respondent’s own version this was in violation of clause 7.7 of the Disciplinary Procedure as it was done in absence of an agreement between the parties or an application to that effect.

[20] As already alluded to, the compliance order of 9 June 2021 ordered the Respondent to comply with Clause 7.7 of the Disciplinary Procedure.

[21] On 22 June 2021 the Respondent made an application for legal representation, as provided for in clause 7.4 of the Disciplinary Procedure. The presiding officer has to make a determination as to whether it will be reasonable to allow legal representation.

[22] Mr Matimbi for the Applicant conceded that the application made by the Respondent on 22 June 2021 indeed constituted compliance with the provisions of clause 7.7 of the Disciplinary Procedure.

[23] Mr Matimbi however argued that there was still no compliance with the provisions of clause 7.6 of the Disciplinary Procedure and that this was a factor this Court should take into consideration. The argument presented by Mr Matimbi is unsustainable. The compliance order of 9 June 2021 ordered the Respondent to comply only with Clause 7.7 of the Disciplinary Procedure. There is no order to compel the Respondent to comply with clause 7.6 and Mr Matimbi’s argument that it is implied in the order, is far-fetched. The Applicant has not approached the SALGBC for variation or rectification of the compliance order, as he should have done if he was of the view that the terms of the order were not correctly captured. It is untenable to entertain an argument that this Court should read into the compliance order that which is not there on the basis that it is implied.

[24] The Applicant seeks an order to interdict the Respondent from proceeding with his disciplinary hearing and to order the SALGBC to proceed with arbitration proceedings compelling the Respondent to comply with the terms of the compliance order. There was evidently compliance with clause 7.7 of the Disciplinary Procedure and thus the terms of the compliance order. There is no basis for any arbitration proceedings to compel the Respondent to comply with the terms of the compliance order in circumstances where there has been compliance.

[25] Furthermore, as the Applicant seeks an order to interdict the proceeding of his disciplinary hearing, he has to show that there are exceptional circumstances that justifies intervention in the pending disciplinary proceedings.

[26] In Jiba v Minister: Department of Justice and Constitutional Development and others[1] this Court held that:

“Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.”

[27] Not only did the Applicant fail to show that the compliance order of 9 June 2021 was not complied with, he dismally failed to show that there are any exceptional circumstances that justify intervention in his pending disciplinary hearing.

[28] There is no merit in the application and it follows that the Applicant is not entitled to the relief he seeks on an urgent basis.

Costs

[29] The last issue to be decided is the issue of costs.

[30] In so far as costs are concerned, this Court has a broad discretion in terms of section 162 of the Labour Relations Act[2] (LRA) to make orders for costs according to the requirements of the law and fairness. Mr Matimbi submitted that there should be no order as to costs as this application was not far-fetched. Mr Kgomongwe for the Respondent on the other hand submitted that the Applicant should be ordered to pay the Respondent’s costs.

[31] In In Ngobeni v Passenger Rail Agency of SA Corporate Real Estate Solutions and others[3] the Court has lamented the fact that the urgent roll in this Court has become increasingly and regrettably populated by applications in which intervention is sought, in one way or another, in workplace disciplinary hearings. All of this is indicative of an attempt to use this Court and its processes to frustrate the workplace proceedings already underway. The Court’s proper role is one of supervision over the statutory dispute resolution bodies. It is not a Court of first instance in respect of the conduct of a disciplinary hearing, nor is its function to micro-manage discipline in workplaces.

[32] The Court in Ngobeni also issued a warning to the effect that litigants should be warned that it is not often that this Court will intervene in incomplete workplace disciplinary hearings and that similar abuses of the right to urgent relief that this Court affords in appropriate circumstances will be met with punitive orders for costs. The Court has granted an order for costs on a punitive scale because the Court considered the application to be wholly misguided and one that served to frustrate one of the fundamental purposes of the LRA, which is the expeditious resolution of workplace disputes within a defined structure. In the Court’s view the applicant's conduct warranted an order for costs on a punitive scale.

[33] In Zungu v Premier of Kwa Zulu-Natal and Others[4] the Constitutional Court confirmed the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court cases that should not have been brought to Court in the first place.

[34] This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly

compelled to initiate or defend litigation. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[5] it was emphasized that:

‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party be awarded its costs. The successful party has been compelled to engage in litigation and incur legal costs. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court, whether as applicant in launching proceedings or as respondent opposing proceedings.’

[35] In my view this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success, more so where an application is filed on an urgent basis.

[36] This Court is ordinarily reluctant to make orders for costs against individual employees, for whom the prospect of an adverse costs order may serve to inhibit the exercise of what they perceive as their rights. This is not an immutable rule.

[37] In casu the application was also wholly misguided and meritless and the Applicant dismally failed to satisfy the requirements for the interdict he sought. It is evident that even in his attorney’s letter of 30 June 2021 it was recorded that the Respondent was obliged to comply with clause 7.7 of the Disciplinary Procedure. No mention was made of clause 7.6 – not in the compliance order or in the attorney’s letter. The Respondent replied on 1 July 2021 to the effect that it had complied with clause 7.7. This should have triggered some hesitation to proceed with this urgent application and should have caused some thought on the issue of prospects of success. Notwithstanding compliance with the compliance order and correspondence from the Respondent’s attorney to that effect, the Applicant persisted with this application.

[38] The Respondent had to defend a meritless urgent application and fairness dictates that it cannot be expected to endure enormous costs defending litigation that ought not to have been brought in the first place. Ultimately, the Applicant is the author of his own misfortune as he is quite capable of considering the consequences of instituting meritless litigation and he had to put in some earnest thought and consideration into the merits of this case and the warning issued in Ngobeni before filing this urgent application.

[39] I am alive to the fact that the Applicant is an individual, but I cannot ignore the fact that he ultimately initiated this application in circumstances when he should not have done so. To make matters worse for the Applicant, he was legally represented and did not approach this Court as an unrepresented layperson.

[40] In the present circumstances, the interests of justice require that the Applicant pays at least a portion of the First Respondent’s costs. In my view, a sum equivalent to 50% of the Respondent’s costs will best serve those interests.

[41] In the premises, I make the following order:

Order

1. The application is dismissed;

2. The Applicant is to pay the First Respondent’s cost, limited to 50% of the taxed costs.

___________________

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate Matimbi

Instructed by:

Sharon Mabasa Attorneys

For the First Respondent: Advocate Kgomongwe

Instructed by:

Popela Maake Inc Attorneys

[1] (2010) 31 ILJ 112 (LC) at para 17.

[2] Act 66 of 1995, as amended.

[3] (2016) 37 ILJ 1704 (LC).

[4] (2018) 39 ILJ 523 (CC) at para 24.

[5] (2012) 33 ILJ 2117 (LC) at para p 2119 I-J.