N.V v Rhodes University and Others (3289/2018) [2018] ZAECGHC 133; [2019] 3 BLLR 318 (ECG) (11 December 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No: 3289/2018

In the matter between:

N.V

Applicant

And

RHODES UNIVERSITY

First Respondent

DISCIPLINARY BOARD

Second Respondent

LUVUYO BONO N.O.

Third Respondent

JUDGMENT

BESHE J:

[1] Applicant approached this court on an urgent basis for a prayer that the disciplinary action against him be declared unlawful and void ab initio.

[2] Applicant is employed by the first respondent as a full-time lecturer in the Allan Grey Centre for

Leadership, a subsidiary of the Philosophy Department. His contract of employment comes to an end on 31 December 2018.

[3] As would appear from the relief sought, applicant is the accused in a disciplinary hearing that is being conducted by the first respondent. The allegation therein being that he is guilty of sexual harassment.

[4] The first respondent is an institution of higher education. The second respondent is the Disciplinary Board. The third respondent was the Chairman of the disciplinary hearing.

[5] The hearing commenced on the 9 July 2018. Evidence on the merits for both parties was concluded on the 10 July 2018.

[6] At the conclusion of the evidence relating to the merits the parties agreed to submit their arguments in writing to the chairperson.

[7] Applicant submitted a comprehensive argument comprising 74 paragraphs. The first 43 paragraphs dealt with the merits. The rest of the submissions on the remaining paragraphs dealt with what is termed “procedural irregularities”.

[8] According to the applicant, at the start of the disciplinary hearing, he was advised by the first respondent’s legal team that the Policy on Eradicating Unfair Discrimination and Harassment was no longer being implemented. That however during her testimony, Ms Norma Mrwetyana testified that in 2017 she was employed amongst other positions as first respondent’s “Harassment Officer”. And that the abovementioned policy even tough under review, was still being implemented. Applicant asserts that from Mrwetyana’s evidence, it is clear that besides advising complainant of the options that were available to her in terms of the policy, no other steps were taken to comply with the “policy”.

[9] The second procedural point the applicant took is that first respondent failed to ensure a prompt resolution

and conclusion of the disciplinary action. Thirdly, the applicant contended that the parties concerned in disciplinary hearing had resolved the matter between them in an informal manner and that any action taken against him is tantamount to “double jeopardy”.

[10] In its submissions, first respondent also responded to the points in limine of procedural irregularities taken by the applicant concluding that none of these are valid.

[11] The third respondent found the applicant guilty as charged. Stating that he did not pay much attention to the evidence and argument relating to the gravity of the employees’ action etc, including the procedural challenges raised because these are issues that he will consider when dealing with the sanction. He went on to say “The procedural issues have nothing to do with whether the employee committed the alleged offence or not, but are in my view relevant in so far as whether the employee was dealt with fairly by the employer and or in line with the employer policies, in taking action against him in relation to the alleged misconduct. At this point, I only need to consider whether the employee committed the alleged misconduct”.

This application

[12] According to the applicant, he is contractually entitled to a procedurally fair disciplinary process as set out in the old Disciplinary Code – and Harassment policy which are an extension of his employment contract.

[13] The applicant goes on to highlight the distinguishing features between the old and the new harassment policy. And how being dealt with in terms of the new policy has disadvantaged him. In addition, he highlights the fact that the old harassment policy provides that the Chairperson of a Level 3 disciplinary hearing should be appointed by the Vice Chancellor.

[14] It is on this basis that the applicant seeks to have the disciplinary hearing against him declared unlawful and void ab initio.

[15] It was also submitted on his behalf that I should disregard the answering affidavit and decide the matter on applicant’s version. It was argued that the deponent thereto, Ms Smailes had no authority to depose to such an affidavit. There being no proof that there was a proper delegation of the Principal’s function to her.

[16] I will have regard to Ms Smailes affidavit in answer to the founding affidavit. It is settled law that the deponent to an affidavit in motion proceedings need not be authorised by the party concerned to do so.[1]

[17] First respondent admits that the disciplinary hearing was conducted under the auspices of a new procedure.[2] It is conceded in this regard that the new procedure was utilized on the bona fide but mistaken view that it had been approved by the Rhodes University’s governing structures and that it ought to have governed applicant’s disciplinary hearing.

[18] First respondent denies that “Staff Disciplinary Procedure” forms part of applicant’s employment contract, asserting that it was not incorporated into his contract of employment. That only the paragraph “Disciplinary Code”

was not incorporated into the employment contract. And that therefore non-compliance with the Old Staff Disciplinary Procedure does not amount to breach of a contract on the part of the first respondent.

[19] It is on the same basis that first respondent asserts that the issue between the parties concern a Labour Relation issue and therefore this court lacks the jurisdiction to entertain this matter. The parties were ad idem that this court would have jurisdiction to entertain the matter if it concerned applicant’s contractual rights. But, as indicated, first respondent denied that the Old Procedure, so called, forms part of applicant’s employment contract.

[20] Counsel for both parties, Mr Paterson SC for the applicant and Mr Grogan for the first respondent referred me to the matter of Benyon v Rhodes University and Another [2017] 4 BLLR 423 ECG where the court was concerned with a similar question. Namely, whether the issue raised in the application and the manner in which it was pleaded, reliance is placed on a contractual entitlement as opposed to issues of fairness in the employment relationship. The applicant had apparently, in circumstances similar to those prevailing in this matter, pleaded that as an employee of the respondent, in that matter which is incidentally the first respondent in this matter, he was bound to abide by the requirements of the Disciplinary Code of the University which code must be read with the Policy of Eradicating Unfair Discrimination and Harassment. (The Old Policy). In the Benyon matter supra the applicant contended that there had been a breach of his employment contract which he asserted, incorporated the Disciplinary Code and the Policy on Eradicating Unfair Discrimination and Harassment. (Old Procedure in the matter under consideration). Lowe J had this to say in this regard:

“[24] I have no doubt, from what follows, that the basis of applicant’s claim, as pleaded, was unequivocally expressed as relying on his contractual entitlement and the breach thereof, and was not based on any other cause of action, let alone fairness. Applicant made no suggestion in his founding affidavit that the matter was based on the issue of fairness or on the basis of the Labour Relations Act 66 of 1995, and disavowed this expressly in reply.

[25] Further, I am of the view that the claim, as it has been pleaded before me, stands or falls on its contractual basis, and that

accordingly this Court has jurisdiction to hear the matter.”

[21] Mr Grogan was at pains to explain that this is not a purely jurisdictional point, in other words, it was not a jurisdictional plea but rather a special plea that exceptions to matters pleaded as contractual claims, are pleas that such claims are bad in law because the Labour Relations Act provides for a complete remedy for employees.

[22] Be that as it may, it was argued on behalf of the first respondent that although the Old Procedure / Policy contains both a disciplinary code, the former is distinct from the latter. It was further argued that the disciplinary procedure imposes obligations on the University, from when the applicant derives no reciprocal right in terms of his contract of employment. That this right does not appear ex facie applicant’s contract. A number of examples were cited of cases where in the contracts it was expressly stated that before action against an employee can be taken, certain disciplinary codes and procedures had to be complied with.

[23] Applicant’s employment contract with the first respondent contains amongst others, the following clauses:

“The staff member shall undertake to abide by the Rules and Regulations of the University as articulated in the policies and procedures of the University or as communicated to him/her by senior officials of the University, and

This staff member shall abide by the requirements of the Disciplinary Code of the University, a copy of which can be found at http//www.ru.ac.za//intranet/policies.”

[24] There is an acknowledgement on behalf of the first respondent that the old procedure contains both the disciplinary

procedure and disciplinary code (See paragraph [17] of the Heads of Argument). Both are referred to in the employment contract. There is a further acknowledgement that the disciplinary procedure imposes obligations on the University, from which, it argued, applicant derives no right in terms of his contract. I do not see why this should be the case if both are referred to in applicant’s

employment contract. Why should the disciplinary policy not be regarded as an extension or part of the employment contract? Why

should the employee be obliged as part of his contract, to abide by the requirements of the Disciplinary Code of the University, which inter alia provides for the disciplinary procedure, and yet the employer is at liberty to follow a procedure other than the one the employer is obliged to abide by. I am satisfied that the applicant has succeeded in establishing that both the disciplinary code and the “old policy” from part of his employment contract. That failure by the University to adhere to the two documents amounts to a breach of an enforceable contract. He has a right to be dealt with in terms of his employment contract.

[25] It was argued that in the event I found that applicant has pleaded an enforceable contract, I must consider that the University did not breach any of applicant’s contractual rights in a manner that warrants that the proceedings before the third respondent should be set aside.

[26] The applicant enumerated the ways in which the application of the new procedure differs from that of the old procedure; for example, the manner of appointing the chairperson, the grading of the offences – division of offences into different levels etc which is provided for in terms of the old procedure and not the new procedure etc. I am not persuaded that the breach was not material.

[27] The application was impugned on the basis that it has not met the requirements, which were dealt with extensively by counsel for first respondent, for a final relief.

[28] Those are requirements applicable where a final interdict is sought. This is not the remedy sought by the applicant.

In my view, those requirements are not applicable for purposes of the remedy sought by the applicant.

[29] I am of the view that the applicant has succeeded in making out a case for the relief he seeks.

[30] Accordingly the application succeeds. The disciplinary hearing against the applicant is declared unlawful and void ab initio.

First respondent is ordered to pay the costs of the application.

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant :

Adv: TJM Paterson SC

Instructed by :

WHEELDON RUSHMERE & COLE INC.

119 High Street

Grahamstown

Ref: M van der Veen/Michelle/S21183

Tel.: 046 – 622 7005

For the 1st Respondent : Mr. JG Grogan

Instructed by :

HUXTABLE ATTORNEYS

26 New Street

GRAHAMSTOWN

Ref: Mr O Huxtable

Tel.: 046 – 622 2692

Date Heard : 29 November 2018

Date Reserved : 29 November 2018

Date Delivered : 11 December 2018

[1] Ganes and Another v Telecom Namibia 2004 (3) SA 615 SCA.

[2] Replying Affidavit page 171 [7] of the papers.