Nxele v National Commissioner: Department of Correctional Services and Another (D303/2022) [2022] ZALCD 32 (2 August 2022)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE LABOUR COURT OF SOUTH AFRICA DURBAN

Case no: D303/2022

Not Reportable

In the matter between:

MNIKWELWA NXELE

Applicant

and

THE NATIONAL COMMISSIONER:

DEPARTMENT OF CORRECTIONAL SERVICES

First Respondent

ADVOCATE HASSIM SC N.O.

Second Respondent

Heard: 22 July 2022

Delivered: 2 August 2022

JUDGMENT

ALLEN-YAMAN AJ

Introduction

[1] On 23 May 2022 this application served before the honourable Lawrence AJ who ordered that the application be dealt with on an urgent basis. Contemporaneously with the granting of the order relating to urgency, he issued a rule nisi calling upon the first respondent to show cause why an order in the following terms should not be granted:

‘2.1 the disciplinary enquiry initiated by the first respondent against the applicant, to be chaired or presided over by the second respondent, be converted into an inquiry by arbitrator in accordance with section 188A(11) of the Labour Relations Act 66 of 1995, as amended (LRA).

2.2 consequent to the grant of Order 2.1 above, the first respondent be ordered to immediately take all necessary steps and complete and submit all necessary forms to bring an application before the General Public Sectoral Bargaining Council (GPSSBC) in terms of section 188A(1) and (2) of the LRA.

2.3 the precautionary suspension imposed by the first respondent on the applicant on 28 February 2022 be declared to have lapsed and expired on the basis that the disciplinary enquiry against the applicant has not been held within sixty (60) days of the commencement of the precautionary suspension.

2.4 the respondents are interdicted and restrained from holding the disciplinary enquiry against the applicant, which is scheduled to commence on Tuesday, 24 May 2022 in Pretoria.

2.5 the first respondent be directed to pay the costs of this application on a punitive scale, alternatively, the first respondent is directed to pay the costs of this application.’

[2] The orders issued in paragraphs 2.1 to 2.4 were ordered to operate with immediate effect pending the final determination of the application.

[3] By the time the matter was argued, a full set of affidavits had been exchanged. The first respondent opposed the application on the basis that (a) this court does not have the necessary jurisdiction to grant the orders sought by the applicant in 2.1 to 2.3 of his Notice of Motion, (b) the applicant’s claim in relation to his suspension is to be arbitrated by the GPSSBC and is accordingly lis alibi pendens, and (c) on the merits.

[4] In addition, the first respondent had by the time the matter was argued delivered a supplementary affidavit under cover of a Notice of Application in which the following relief was sought,

‘1. The first respondent be granted leave to file this further affidavit;

2. The allegations referred to and dealt with in paragraph 9 of this affidavit be struck out as frivolous, vexatious and / or irrelevant or being new matter;

3. If the court were to uphold the applicant’s submission that his suspension is illegal, that the court orders that the applicant be placed on continued precautionary suspension pending the finalisation of the disciplinary charges already preferred against him;

4. That the costs incurred in respect of the filing of this further affidavit be costs in the cause;

5. Further and / or alternative relief.’

[5] At the hearing of the matter the applicant’s legal representative, Mr Mgaga, opposed the first respondent’s application for the admission of the first respondent’s supplementary affidavit. He nonetheless accepted that the first respondent was entitled to apply for the striking out of material contained in the applicant’s replying affidavit and was also at liberty to launch a conditional counter application (although this should have been done contemporaneously with the delivery of the first respondent’s answering affidavit). Mr Mgaga was satisfied that the applicant did not require an opportunity to deliver a further affidavit of his own to respond to any of the allegations contained in the supplementary affidavit, whether relating to the striking out application, the conditional counter application or any of the other ancillary issues mentioned therein, and accordingly ultimately conceded that the supplementary affidavit could be admitted. I accordingly granted the first respondent leave to deliver its supplementary affidavit.

[6] The first respondent, during the course of the argument, indicated that it did not persist with its striking out application, and it accordingly became unnecessary for me to consider that issue.

[7] In consideration of the applications before me, I am therefore required to determine:

1. whether this court has jurisdiction to determine the issues raised in paragraphs 2.1 – 2.3 of the rule nisi issued,

2. whether the applicant’s challenge to the lawfulness of his continued suspension is lis pendens in another forum,

3. if not, whether his suspension is unlawful,

4. if it found to be unlawful, whether this court ought itself to suspend him pending the outcome of the disciplinary enquiry which is presently pending,

5. whether the disciplinary enquiry which is presently pending is required to be converted into an enquiry by arbitrator in terms of section 188A(11) of the LRA, and

6. whether either party ought to be awarded costs, and, if so, on what scale.

Jurisdiction

[8] The first respondent has raised the issue of the jurisdiction of this court. It alleges that this court, being a creature of statute, does not have the requisite jurisdiction to grant the applicant’s

relief regarding the conversion of the disciplinary enquiry into an inquiry by arbitrator under section 188A(11) of the LRA, nor to interdict the disciplinary enquiry itself.[1]

[9] Although the first respondent did not raise the issue in argument, I have nonetheless considered it and am satisfied that this court does have the jurisdiction necessary to entertain the applicant’s

claims, by virtue of the provisions of section 157 read with subsections 158(1)(a)(ii) and (1)(b) of the LRA.

Background

[10] It would appear that the applicant’s employment has been besieged with certain difficulties for a considerable period of time, and these difficulties include him having been subjected to several disciplinary enquiries and ancillary suspensions. This, in turn, has led to a plethora of litigation, the extent of which is unnecessary for me to consider or to comment upon. Set out hereunder are only the facts and events which have given rise to the application and counter application presently before me, which are considered to be most relevant to the determination of the issues.

[11] The applicant is employed by the Department of Correctional Services as the Regional Commissioner of Correctional Services for KwaZulu-Natal. The post of the first respondent is currently occupied by Mr Thobakgale, who does so in an Acting capacity, held by him since September 2021 pursuant to the previous incumbent, Mr Fraser, having vacated the office.

[12] On 26 October 2018 the applicant reported certain of Mr Fraser’s conduct to the Public Service Commission. This disclosure was ultimately found by that body to have been a protected disclosure as defined in the Protected Disclosures Act, 2000, as amended (‘the PDA’) on 10 October 2019, arising out of which the applicant had been subjected to an occupational detriment as defined in the PDA,

‘The NC admitted that the disciplinary charges relates to the complaint lodged with the PSC. The DCS therefore is subjecting Mr Nxele to occupational detriment on account, or partly on account, of having made a protected disclosure, which is prohibited by law.’[2]

[13] The following year, during March 2020 the applicant was again charged with certain acts of misconduct by the previous incumbent in the post of the first respondent. The internal disciplinary hearing was convened before Advocate Mooki SC, who was the appointed chairperson thereof. Upon application by the applicant to the chairperson, the hearing was converted to an enquiry by arbitrator in terms of section 188A(11) of the LRA on 14 July 2020.[3]

[14] The disciplinary charges which had been initiated in March 2020 were duly dealt with by way of a section 188A(11) inquiry by arbitrator under case number GPBC 724/2020, the arbitrator appointed having been one Mr Wabile. The charge sheet itself has not been presented in these proceedings as a self-standing document, however, the charges are detailed in the award which was handed down by the arbitrator (‘the Wabile award’).[4] The charges in respect of which the applicant’s guilt or otherwise was required to be determined as well as the ultimate conclusions arrived at by the arbitrator appear therefrom to have been as follows:

‘Charge 1 – Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That in the period, 02 January 2016 to 23 December 2018, you as Regional Commissioner in KwaZulu-Natal Region, who holds a position of the utmost trust within the Department, obtained indeterminable amounts of money from undisclosed sources, that you did not declare either in terms of Chapter 3 of the Public Service Regulations 2001, as amended or Regulation 18, read with Regulation 19, of the Public Service Regulations, 2016 and which you inter-alia utilized for gambling purposes at the Sibiya Casino in Durban.

It is alleged that during the said period you withdrew funds from bank cards in your name and utilized the funds to make cash buy-ins of approximately R13 779 500 at the said casino for inter alia gambling purposes and in the process suffered gambling losses in a net amounts of approximately R6 287 819.00 which were funded from the said undisclosed sources.

It is alleged that your said unbecoming conduct destroyed your employment relationship with the Department’

The verdict of the arbitrator in respect of the aforementioned charge was that of Not Guilty.

‘Charge 2 – Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That in the period 24 January 2012 to 14 July 2018, you, as Regional Commissioner in KwaZulu Natal Region, who holds a position of the utmost trust within the Department, obtained indeterminable amounts of money from undisclosed sources, that you did not declare in terms of Chapter 3 of the Public Service Regulations 2001, as amended or Regulation 18, read with Regulation 19(e), of the Public Service Regulations, 2016 and which you inter-alia utilized for gambling purposes at the Suncoast Casino.

It is alleged that during the said period you deposited R1 977 900.00 at the said casino for inter alia gambling purposes and in the process suffered gambling losses in a net amount of approximately R301 500.00 which were funded from the said undisclosed sources.

It is alleged that your said unbecoming conduct destroyed your employment relationship with the Department.’

The arbitrator returned a verdict of Not Guilty in respect of this charge.

‘Charge 2A – Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That in the period 06 February 2016 to 31 December 2019 you, as Regional Commissioner in KwaZulu Natal Region, who holds a position of the utmost trust within the Department, obtained indeterminable amounts of money from undisclosed sources, that you did not declare in terms of Chapter 3 of the Public Service Regulations 2001, as amended or Regulation 18, read with Regulation 19, of the Public Service Regulations, 2016 and which you inter-alia utilized for gambling purposes at the Wild Coast Casino.

It is alleged that during the said period you withdrew funds from bank cards in your name and utilized the funds to make cash buy-ins of approximately R4 090 000.00 at the said casino for inter alia gambling purposes and in the process suffered gambling losses in a net amounts of approximately R6 287 819.00 which were funded from the said undisclosed sources.

The arbitrator concluded that the applicant had not committed the infraction alleged and exonerated the applicant.

‘Charge 5 - Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That you, as Regional Commissioner in KwaZulu Natal Region, who holds a position of the utmost trust within the Department, obtained indeterminable amounts of money from undisclosed sources, that you did not declare in terms of Chapter 3 of the Public Service Regulations 2001, as amended or Regulation 18, read with Regulation 19, of the Public Service Regulations, 2016 and which you inter-alia utilized to purchase, in a cash transaction, Portion [....] of Erf [....] Pietermaritzburg T [....] dated 12 May 2015 at a purchase price of R670 000.00. The said property is registered in your name as well as in the name of your wife Jubilee Nxele.

As with the previously mentioned charges, the applicant was acquitted of any wrongdoing in regard to this allegation.

‘Charge 6 - Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That you, as SMS member and Regional Commissioner in KwaZulu Natal Region, who holds a position of the utmost trust within the Department, obtained indeterminable amounts of money from undisclosed sources, that you did not declare in terms of Chapter 3 of the Public Service 2001 (sic), as amended or Regulation 18, read with Regulation 19 of the Public Service Regulations, 2016 and which you inter-alia utilized to purchase on behalf of Zogoba Trust, in a cash transaction, Erf [....] E [....] (Extension No 1) T [....] dated 28 April 2016 at a purchase price of R2 350 000.00. The Zogoba Trust, of which you are the only trustee, is the registered owner of Erf [....] E [....] (Extension No 1).

The arbitrator found that the applicant had committed no misconduct in relation to this charge.

‘Charge 7 – Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That you, as SMS member and Regional Commissioner in KwaZulu Natal Region, who holds a position of the utmost trust within the Department, obtained indeterminable amounts of money from undisclosed sources, that you did not declare in terms of Chapter 3 of the Public Service Regulations 2001, as amended or Regulation 18, read with Regulation 19, of the Public Service Regulations, 2016 and which you inter-alia utilized to purchase, in a cash transaction, Erf [....] Trafalgar, T [....]dated 19 December 2016 at a purchase price of R560 000.00. Erf [....] Trafalgar, T [....]is registered in your name as well as in the name of your wife Jubilee Nxele.

The arbitrator concluded that he was not guilty of the charge as alleged, however found him to have been guilty in respect of an alternative, lesser infraction, having been the failure on his part to have declared the immovable property in question. For this it was determined that the appropriate sanction was that of a written warning in compliance with Resolution 1 of 2003, valid for a period of six months from the date of the award.

‘Charge 8 – Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That you as Regional Commissioner in KwaZulu Natal Region, who holds a position of the utmost trust within the Department, and Chairperson of the said region’s Sub Bid Adjudication Committee had a corrupt relationship with management of Cool Ideas 1556 CC during or about the period September 2013 to 2 October 2015.

It is alleged that during the said period, you in your capacity as the chairperson of the Sub Bid Adjudication Committee, facilitated the awarding of 13 the irregular (sic) tenders to Cool Ideas 1556 CC by means of disqualifying legitimate tenders which were recommended for approval by the Bid Evaluation Committee and applying undue pressure on the respective members of the respective Sub Bid Adjudications Committee, alternatively coerced them, to award the said tenders to Cool Ideas 1556 CC instead.

It is alleged that the following tenders were irregularly awarded to Cool Ideas 1556 CC: KZN21/13, KZN22/13, KZN05/14, KZN06/14, KZN10/14, KZN15/14, KZN16/14, KZN17/14, KZN19/14, KZN31/14, KZN32/14, KZN19/15 and KZN 33/15.

The arbitrator concluded that the applicant was not guilty of any misconduct in relation to this charge.

‘Charge 9 – Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That you as Regional Commissioner in KwaZulu Natal Region and chairperson of the said region’s Sub Bid Adjudication Committee who holds a position of trusts (sic) within the Department, during or about the period October 2014 to August 2015 had a corrupt relationship with management of GPSMN Communication Events and Projects.

It is alleged that during the said period, you in your capacity as the chairperson of the Sub Bid Adjudication Committee, facilitated the awarding of 2 the irregular (sic) tenders to GPSMN Communication Events and Projects by means of disqualifying legitimate tenders which were recommended for approval by the Bid Evaluation Committee and applying undue pressure on the respective members of the respective Sub Bid Adjudications Committee to award the said tenders to GPSMN Communication Events and Projects instead.

It is alleged that the following tenders were irregularly awarded to GPSMN Communication Events and Projects: KZN25/14 and KZN 17/15.

The applicant was acquitted of having committed any wrong-doing in respect of this charge.

‘Charge 10 – Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That you as Regional Commissioner in KwaZulu Natal Region, who holds a position of the utmost trust within the Department, and chairperson of the said region’s Sub-Bid Adjudication Committee, during or about the period September 2015 to January 2016 contravened the Code of Conduct for Supply Chain Management Practitioners issued on 5 December 2003 (SCM4 of 2003), read with National Treasury’s Code of Conduct for Bid Adjudication Committees dated 24 March 2005 on several occasions.

It is alleged that during the said period, whilst you were chairperson of the Sub Bid Adjudication Committee, you were in telephonic contact with Mr Saleem Sheik of Cool Ideas 1556 CC on 40 occasions. During the said period, the Sub Bid Adjudication Committee, of which you were the chairperson, adjudicated several tenders submitted by Cool Ideas 1556 CC.

The arbitrator found the applicant not to have been guilty of any misconduct in regard to this charge.

‘Charge 11 – Contravention of paragraph 1 and / or 2 of Annexure A of Chapter 7 of the SMS Handbook:

That you as Regional Commissioner in KwaZulu Natal Region, who holds a position of the utmost trust within the Department, and chairperson of the said region’s Sub-Bid Adjudication Committee, during or about the period August 2015 to August 2016 contravened the Code of Conduct for Supply Chain Management Practitioners issued on 5 December 2003 (SCM4 of 2003), read with National Treasury’s Code of Conduct for Bid Adjudication Committees dated 24 March 2005 on several occasions.

It is alleged that during the said period, whilst you were chairperson of the Sub Bid Adjudication Committee, you were in telephonic contact with Mr Msimang of GPSMN Communication Events and Projects on 117 occasions. During the said period, the Sub Bid Adjudication Committee, of which you were the chairperson, adjudicated several tenders submitted by GPSMN Communication Events and Projects.

The applicant was acquitted of the allegations of wrongdoing encompassed in this charge.

[15] Whilst there seem to have been four further charges in respect of which the applicant was called to account, from the comments made in relation to those charges in the Wabile award, the first respondent did not appear to have persisted therewith.

[16] In acquitting the applicant of all but one of the alternate counts for which it was found that a written warning sufficed as a sanction, the arbitrator issued the further orders as part of his award on 7 February 2022,

‘I order that the Applicant [first respondent] uplift the suspension of the respondent in consequence of this award.

I direct that the respondent report to his workplace on 14 February 2022 at the time he is contractually obliged to report.’

[17] These orders were made in circumstances in which the applicant had been suspended from his duties pending the outcome of the section 188A(11) process.

[18] By 9 February 2022 the applicant’s attorneys received correspondence from the Office of the State Attorney addressed on behalf of its client, the Department of Correctional Services.[5] In that letter the applicant’s attorneys were notified that the Department of Correctional Services intended to review the award under GPBC 724/2020. The letter further served to notify the applicant’s attorney that,

‘Given the proposed review application, we are instructed to advise you, as we hereby do, that your client’s suspension will remain in force until finalisation of the review proceedings, and reconvened disciplinary enquiry that follows thereon. Your client will accordingly not be entitled to return to work and resume his duties. If Mr Nxele refuses to heed to this injunction, we hold instructions to approach the Labour Court in Johannesburg on an expedited basis to obtain an urgent interdict and restraining order to ensure that your client complies therewith.

Kindly inform me in writing at your earliest convenience that your client will abide the request. This letter will obviously from part of the application to restrain your client from returning to work. He is simply not entitled to do so.’

[19] In an apparent effort to ensure that the applicant would be left in no doubt about the position taken by the Department of Correctional Services in relation to the Wabile award and its consequences, the first respondent personally took the time to address a further letter directly to the applicant the very same day.[6] The letter is couched in similar terms to that addressed by the Office of the State Attorney and indeed makes reference to that letter,

‘As a result of the intended review, your suspension will remain in force. You will accordingly not be allowed to return to work on 14 February 2022 as ruled by the arbitrator. The State Attorney has written to your attorney to request an undertaking from you not to return to work. In the letter the State Attorney sets out the grounds for the review application.

If you fail or refuse to give such an undertaking the Department will have no other option but to approach the Labour Court to obtain a restraining order. I do not believe that it is in the interest of either the Department or you to drag the matter to court and therefore, call on you to give serious consideration to the State Attorney’s request to your attorney.’

[20] The applicant’s attorney responded to the State Attorney the following day, in which letter it was advised that the applicant would be returning to work in accordance with the terms of the Wabile award,[7]

‘In the circumstances, you are hereby informed that our client will return to work on Monday the 14th of February 2022. Any application that your client may bring to interdict or restrain our client from returning to work will be vigorously opposed, and a personal punitive costs order will be sought against the official/s of the Department who will be responsible for bringing that application.’

[21] The Department of Correctional Services served two sets of application papers on the applicant on Sunday, 13 February 2022; an application to review and set aside the award under case number GPBC 724/2020, and an application to interdict the applicant from returning to work.

[22] As he had indicated that he would do, the applicant endeavoured to return to work on Monday, 14 February 2022. His attempt proved to be unsuccessful as he found that his access to his place of employment was barred by the presence of a number armed guards at the entrance gate. The events of that day appear to have been described in greater detail in the affidavits deposed to in the interdict application which had been launched to prevent the applicant from taking up his duties than was detailed in these proceedings, for in the words of Witcher J,[8]

‘The second incident concerned the employee presenting himself at work after the inquiry by arbitrator resolved in his favour and his suspension was uplifted. When he arrived at the gates in February 2022, it is common cause that some unpleasantness occurred. Armed security guards denied the employee entry and harsh words were exchanged. While the employee knew at the time that his employer intended challenging the award finding him not guilty of serious misconduct and uplifting his suspension, he was not prevented from tendering his services.’

[23] The applicant was accordingly unable to attend work on that day. From the papers before me I am unable to discern any further attempts on his part to do so after 14 February 2022.

[24] The first respondent’s application to restrain and interdict the applicant from returning to work pending the outcome of its review application was heard on 21 February 2022 and was dismissed on 23 February 2022.[9]

[25] In the meantime, on 22 February 2022 the first respondent had notified the applicant of his intention to place him on precautionary suspension in terms of Clause 2.7(2)(a) of Chapter 7 of the SMS Handbook.[10] Pursuant to representations having been made by the applicant in response to that notice concerning why he believed that his proposed suspension would be both unfair and unlawful, the first respondent notified him on 28 February 2022 that he was being placed on precautionary suspension pending the finalisation of the investigation into his conduct and any disciplinary action that might be taken against him. The applicant’s suspension was with immediate effect.

[26] On 28 March 2022 the applicant referred a dispute to the GPSSBC in which he challenged the fairness of his suspension in terms of section 186(2)(b) of the LRA.[11]

[27] The applicant was served with a charge sheet on 5 May 2022 in which he was notified that he was required to attend a disciplinary hearing in relation to a number of charges. Six of these charges pertain directly to the events which had transpired on 14 February 2022 upon the applicant having endeavoured to report for duty, one charge relates to the applicant having addressed certain correspondence to the Minister of Justice and Correctional Services on 11 February 2022 as well as the Deputy Minister of Correctional Services on other occasions regarding the conduct of the first respondent, and the

final charge is that the applicant’s conduct (in the other charges) has brought the Department of Correctional Services into

disrepute.

[28] Pursuant to the applicant having been notified on 14 May 2022 by the first respondent that the disciplinary hearing had been scheduled to proceed from 24 May 2022 until 27 May 2022 at a venue in Pretoria, Gauteng[12] the applicant addressed further correspondence to the first respondent.[13] In the applicant’s letter of 17 May 2022 he objected to the proposed venue of the disciplinary hearing and requested that the enquiry be held under the provisions of section 188A(11) of the LRA. In addition, he noted that a period of sixty days had then passed since his having been suspended and that his suspension had then lapsed. He notified the first respondent that in the event that he did not receive confirmation that the disciplinary hearing would take place in terms of section 188A(11) of the LRA he would approach this court to interdict the enquiry and would seek an order that his suspension had lapsed.

[29] The response given to the applicant by the first respondent the following day evinced the first respondent’s position: the disciplinary enquiry would not be converted to one under section 188A(11) of the LRA, it would proceed as scheduled at the venue in Pretoria, and the applicant’s suspension would not be uplifted.[14]

[30] The applicant duly approached this court and was afforded the interim relief as detailed above.

Analysis

(a) Suspension

[31] It is the applicant’s case that his continued suspension is unlawful, having exceeded the mandatory time limit of 60 days prescribed in terms of clause 2.7(2)(c) of the SMS Handbook, and not having been extended within that period by the chairperson of the disciplinary enquiry to which the suspension relates.

[32] In opposing the relief sought by the applicant in relation to his suspension, the first respondent raised a special plea of lis alibi pendens. In dealing with the issue on the merits, the first respondent advanced the argument in its answering affidavit that the 60 day period was to be calculated with reference to working and not calendar days.

[33] At the hearing of the matter, on the authority of a decision of this court by Van Niekerk J in an unreported judgment which had been delivered on 18 July 2022 under case number J488/2022 in a matter between the Department of Public Works and Another v Samuel Vukela and Others, Mr Kruger SC conceded on behalf of the first respondent that the period of time was to be calculated on the basis of calendar and not working days, that the suspension of the applicant had exceeded a period of 60 days, and was therefore unlawful.

[34] The first respondent nonetheless persisted with the special plea, which issue shall now be considered. Both parties availed themselves of the opportunity given to them to supplement their respective contentions with any further relevant authorities they wished to provide concerning this point, and I am indebted to both parties for having done so.

[35] The first respondent’s special plea arises in the circumstances of the applicant having referred an unfair labour practice dispute to the GPSSBC on 28 March 2022 in which he challenged the fairness of his suspension which had been effected on 1 March 2022. It is this dispute pertaining to the applicant’s suspension which the first respondent alleges operates as bar to this court dealing with the matter by virtue of lis alibi pendens.

[36] The Supreme Court of Appeal provided an authoritative explanation concerning the ambit and requirements of the defence of lis alibi pendens in Nestle (South Africa) Pty Ltd v Mars Incorporated (333/99) [2001] ZASCA 76,

‘The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it the suit must generally be brought to its conclusion before that tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to be revived once it has been brought to its proper conclusion (res judicata). The same suit, between the same parties, should be brought only once and finally.

There is room for the application of that principle only where the same dispute, between the same parties, is sought to be placed before the same tribunal (or two tribunals with equal competence to end the dispute authoritatively). In the absence of any of those elements there is no potential for duplication of actions. In my view none of these elements is present in this case. Indeed, it is difficult to see how they can exist where the matters in issue have been placed before two quite different tribunals (as in this case), the one operating consensually and the other by force of statute, each having its own peculiar functions, powers and authority. For in such a case each tribunal will, by definition, be inquiring into and ruling upon different matters, and neither will be capable of ruling authoritatively on the issue that falls within the competence of the other.’[15]

[37] With specific reference to labour disputes (in the context of the question of jurisdiction), the Supreme Court of Appeal explained the position in Makhanya v University of Zululand (2009) 30 ILJ 1539 (SCA),

‘Naturally a claim that falls within the concurrent jurisdiction of both the High Court and a special court could not be brought in both courts. A litigant who did that would be confronted in one court by either a plea of lis pendens (the claim is pending in another court) or by a plea of res judicata (the claim has been disposed of in another court). A claimant who has a claim that is capable of being considered by either of two courts that have concurrent jurisdiction must necessarily choose in which court to pursue the claim and, once having made that election, will not be able to bring the same claim before the other court. But where

a person has two separate claims, each for enforcement of a different right, the position is altogether different, because then both claims will be capable of being pursued, simultaneously or sequentially, either both in one court, or each in one of those courts.’[16]

[38] The first respondent is correct that both the applicant’s claims arise out of his having been suspended. The first respondent is not, however, correct that the act of the suspension is per se considered to be the subject matter of the proceedings and that there is therefore a duplication of claims. This is so for the simple reason that the suspension of an employee does not, in and of itself, give rise to any cause of action whatsoever. Something more is required to give rise to a claim pertaining to a suspension which is justiciable in law.

[39] A suspension which is effected for reasons which are alleged to be unfair gives rise to a cause of action under section 186(2)(b) of the LRA. A suspension which is alleged to be unlawful gives rise to a cause of action on the basis of illegality. The applicant’s claim before the GPSSBC concerns the fairness of his suspension, that dispute having been referred as an unfair labour practice dispute in terms of section 186(2)(b) of the LRA. The applicant’s claim

before this court concerns the legality of his suspension.

[40] Not only is each such claim discrete, but they are required to be adjudicated in different fora. Only the CCMA and Bargaining Councils have the requisite jurisdiction to determine the question of the fairness of suspensions referred to those bodies in terms of section 186(2)(b) of the LRA. This court does not have the requisite jurisdiction to do so. Equally, only this court, and neither the CCMA nor Bargaining Councils have the requisite jurisdiction to determine the lawfulness of suspensions.

[41] Nothing stated in Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) and Others [2020] 10 BLLR 959 (CC) alters this position. In that matter the Constitutional Court was required to consider whether a certificate of outcome reflecting that a dispute pertaining to the fairness of a number of dismissals sufficed in circumstances in which employees had contended that their respective dismissals had been automatically unfair, and this court had found that such dispute had not been conciliated. In that case, the Constitutional Court concluded that the dispute was the unfairness of the dismissal, whether the unfairness was categorised as unfairness within the meaning of a type categorised under either section 187 or section 188 of the LRA, and that such dispute had in fact been conciliated.

[42] In the present matter, this court and the GPSSBC are required to inquire into and make determinations into different matters, viz unlawfulness and unfairness respectively. This court cannot determine the fairness of the applicant’s suspension, and nor can the GPSSBC determine the lawfulness thereof.

[43] Whilst the two disputes share the commonality of being between the same parties, and both seek that the suspension be set aside as the outcome, the causes of action are not the same. In the result, all the requirements of a successful plea of lis alibi pendens are not met, and the first respondent’s special plea must fail.

[44] Whilst the first respondent conceded that the applicant’s suspension would be unlawful, being in excess of the 60 day period stipulated in the SMS Handbook, with reference to the decision taken in Department of Public Works,[17] this issue will nonetheless be dealt with for the sake of completeness.

[45] The applicant was suspended on 1 March 2022. Accordingly, and even if the 60 day period were to have been calculated with reference to working days, as had been alleged by the first respondent, that period of time nonetheless elapsed without a chairperson of a disciplinary enquiry having extended the suspension as envisaged in Chapter 7 clause 2.7(2)(c) of the SMS Handbook on 30 May 2022.

[46] In the circumstances, whether the 60 day time period elapsed on 29 April 2022 (having calculated the time period by reference to calendar days) or on 30 May 2022 (on the basis of the period of time being calculated by reference to working days), by the time this matter was heard the first respondent could no longer have lawfully suspended the applicant.

[47] In these circumstances, the applicant’s continued suspension is unlawful and falls to be set aside.

(b) First respondent’s conditional counter application

[48] The issue which is then required to be determined is that of the merits of the first respondent’s conditional counter application, an order being sought by the first respondent in the following terms,

‘If the court were to uphold the Applicant’s submission that his suspension is illegal, that the court orders that the Applicant be placed on continued precautionary suspension pending the finalisation of the disciplinary charges already preferred against him.’[18]

[49] With reference to sections 157 and 158 of the LRA I am unable to conclude that this court has the power to act as the first respondent requires it do, and nor was I referred to any authority to the contrary.

[50] Nonetheless, and even if I am wrong in my conclusion as aforesaid, the first respondent did not in his supplementary affidavit (which stood unchallenged) make out a case for its order sought.

[51] Were the matter of the applicant’s continued suspension to be considered from the point of view of an interdict, the first respondent did not establish any of the grounds necessary to be established for the granting of such relief. Were it to be considered merely from the point of view of the basis upon which a suspension may justifiably be imposed on an employee in terms of Chapter 7 clause 2.7(2)(a) of the SMS Handbook, the only basis upon which this could be done (the investigation in this matter being complete) would be in circumstances in which the first respondent believed that the applicant’s presence at the workplace might endanger the well-being or safety of any person or state property. No such evidence was placed before me.[19]

[52] In the circumstances, and even if I am wrong in concluding that this court does not have the power to grant the order sought by the first respondent, then in any event the first respondent’s application could nonetheless not have been sustained on the basis of its merits.

(c) Section 188A(11) Inquiry

[53] On 17 May 2022 the applicant requested the first respondent to proceed with the present charges against him in terms of section 188A(11) of the LRA, which request was refused by the first respondent the following day. The applicant now asks this court to make an order to this effect, which relief is opposed by the first respondent.

[54] The applicant’s case is premised on his assertions that:

1. Since 2016 he has been persecuted by the incumbents occupying the position of the first respondent, viz Messers Modise, Fraser and Thobakgale.

2. Such persecution arose in consequence of a number of protected disclosures which had been made against Fraser.

3. Of particular relevance to his present application is the reliance he places on the protected disclosure made against Fraser in 2018, which was confirmed in 2019 as having been a protected disclosure as defined in the PDA.

4. Pursuant to a further disciplinary enquiry having been initiated against him in 2020, he requested that the enquiry be dealt with under section 188A(11) on the basis that he believed the holding thereof was in contravention of the PDA.

5. Such application was successful and the section 188A(11) process ensued.

6. At the conclusion of the process the arbitrator found the applicant not to have been guilty of all but one of the charges, for which contravention a written warning was imposed.

7. The first respondent, having taken up the post in September 2021, is ‘pursuing the agenda’ of keeping him away from work.

8. That agenda has manifested itself in the conduct of the first respondent directed towards the applicant since having assumed the post.

[55] Section 188A(11) of the LRA provides that,

‘Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000, that employee may require that an inquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee.’

[56] As was stated by this court a previous matter concerning the applicant,[20]

‘In my view, the only proper construction to be accorded to section 188A(11) is that, where an employee or employer requires a pre-dismissal arbitration in terms of section 188A, that request is imperious. This construction gives effect to the purpose of the legislature which is to provide a degree of protection to employees who make protected disclosures and to avoid parallel litigation, typified in the present case.’

[57] In view of the fact that it is common cause between the parties that the applicant made a protected disclosure in 2018, the only issue for determination is whether the applicant’s allegation that the holding of the present disciplinary enquiry constitutes a contravention of the PDA is made in good faith. Should it be so found, the applicant will be entitled to an inquiry by arbitrator under section 188A(11) of the LRA.

[58] The basis upon which the first respondent has premised its opposition to the relief so sought is, in general terms, that the applicant’s application is premised upon speculation and conjecture. The first respondent contends that the applicant is not acting in good faith, and is merely using the provisions of section 188A(11) to escape the consequences of what the first respondent describes as his nefarious conduct.

[59] In asserting an absence of bona fides on the part of the applicant the first respondent alleges that:

1. The applicant’s subjective beliefs can never from the basis for an application to convert his disciplinary hearing into a pre-dismissal arbitration in terms of section 188A(11).

1.51cm; margin-bottom: 0cm; line-height: 200%"> 2. There exists no nexus between the present charges and the protected disclosures previously made.

3. The applicant failed to raise any of issues pertaining to the protected disclosures which had previously been made by him during the course of a previous enquiry which was conducted under the provisions of section 188A(11).

[60] Regarding the issue of the applicant’s subjective beliefs, it is correct that the applicant can present no direct evidence in support of his assertions that the present charges constitute a contravention of the PDA. Were he able to do so, he would be entitled to an interdict discontinuing the disciplinary process in its entirety. To trigger the effect of section 188A(11), something less than objective evidence upon which the allegation is based is required, what is required is that the allegation be made bona fide.

[61] My attention was drawn to the Labour Appeal Court decision in Radebe and Another v Permier, Free State Province and Others (2012) 33 ILJ 2353 (LAC), in which the concept of ‘good faith’ was considered, albeit with reference to the PDA. The LAC referred to a decision of the UK Appeal Court in Street v Derbyshire Unemployed Workers’ Centre [2004] EWCA Civ 964; [2004] 4 ALL ER 839 at 41 in which the concept of ‘good faith’ was crystalised,

‘Shorn of context, the words “in good faith” have a core meaning of honesty. Introduce context, and it calls for further elaboration. Thus in the context of a claim or representation, the sole issue as to honesty may turn on its truth. But even where the content of a statement is true or reasonably believed by its maker to be true, an issue of honesty may still creep in according to whether it is made with sincerity of intention for which the Act provides protection or for an ulterior and, say, malicious, purpose. The term is to be found in many statutory and common law contexts, and because they are necessarily conditioned by their context, it is dangerous to apply judicial attempts at definition in one context to that of another.’

[62] I am in agreement with the first respondent that the objective reasonableness of the subjective belief upon which the allegation is premised must, in the context in which the concept of bona fides is used in section 188A(11), of necessity, be implicit in the determination whether the allegation made by an employee has been made bona fide. If, upon objective consideration of the factors giving rise to an employee’s alleged belief it is found that such belief is not well founded, the very existence of the alleged belief itself would be called into question. Conversely, if the factors which are alleged to give rise to the belief are objectively ascertained as factors which could give rise to an employee’s subjective belief that the disciplinary enquiry in question is no more than an occupational detriment, then the existence of the subjective belief is likely to be established thereby. If the existence of an employee’s subjective belief is objectively established by consideration of the reasonableness thereof then, absent malice, ulterior motive or the like, it would follow that an employee’s request that the proceedings take place under section 188A(11) would have been made in good faith.

[63] The first respondent asserts that the absence of good faith can be determined by consideration of the absence of any nexus between the protected disclosure and the disciplinary charges the applicant presently faces. Moreover, absent such a nexus the charges could not be said to have arisen as a consequence thereof and could not be in contravention of the PDA.

[64] Such a nexus may indeed be discerned by an objective consideration of the facts:

1. In 2020 the chairperson of the disciplinary enquiry which had been convened in respect of the charges which were ultimately determined under section 188A(11) under case number GPBC 724/2020 accepted then that the applicant believed in good faith that the charges themselves were in contravention of the Protected Disclosures Act, 2000 and directed that the enquiry be held under section 188A(11).

1.51cm; margin-bottom: 0cm; line-height: 200%"> 2. The ultimate conclusion of the arbitrator who assessed the evidence presented in support of those charges determined that the applicant was to be acquitted of all but one of those charges, for which a relatively insignificant sanction was found to have been appropriate.

3. Within two days of the Wabile award having been handed down on 7 February 2021 the applicant was twice advised, once by the first respondent personally, that his presence at the workplace on 14 February 2022 was unwanted.

4. On Sunday 13 February 2022, the applicant was served with an application to review the Wabile award, together with an application to interdict his return to work.

5. There having been no lawful impediment to his return to work on 14 February 2022,[21] and evidently eager to resume his duties after an absence of a number of years, the applicant attended the workplace as he had been instructed to do in terms of the Wabile award

6. Upon his arrival he was met with members of the National Emergency Response Team who, as is evident from the newly crafted charge sheet, had been deployed to deny the applicant access to the workplace.

7. All the present charges, but one, arise from the events of 14 February 2022.

[65] In the circumstances set out above there is a direct correlation between the charges of 2020, which the applicant then bona fide alleged were linked to the protected disclosure of 2018, and the present charges which arise from the implementation of the findings of the section 188A(11) enquiry which was undertaken to determine the veracity of those very charges.

[66] In further support of his allegation that the present charges are in contravention of the PDA, the applicant has questioned the partiality of the decisions taken by the first respondent who, in turn, disputes that any such inference can be drawn from his conduct.

[67] It is common cause that the first respondent took occupation of the post in September 2021. On the first respondent’s undisputed version he had previously held the position of Deputy Director General: Programme Management in the Department of Public Works, during which time he had no relationship with the Department of Correctional Services. Accordingly, and on the first respondent’s own version he had no involvement in any of the issues between the applicant and the prior incumbents at any time prior thereto.

[68] Disregarding for the moment anything done prior to February 2022, the first respondent’s actions since then, objectively assessed, cast doubt upon his partiality in the matter.

[69] The first respondent clearly has no personal knowledge of the facts which gave rise to any of the charges which led to the Wabile award, the earliest date in respect of which was 2012 and the latest of which was 2019. Accordingly, absent the first respondent having been advised by others, he could not himself have formed an independent conclusion that the applicant was indeed guilty of the misconduct alleged.

[70] Moreover, the first respondent personally requested the applicant to accede to the State Attorney’s request that he not report for duty in circumstances in which the first respondent (never having actually worked with the applicant) could not have had any personal knowledge of any facts which could have led him to conclude that the applicant’s presence at the workplace would be somehow undermine the safety of any person or state property.

[71] When the applicant’s consent was not forthcoming, the first respondent deposed to an affidavit in support of an application for an interdict to prevent the applicant from returning to work. This, again, was in circumstances in which he could have had no personal knowledge of any reasons why the applicant should be so barred.

[72] When it was apparent that an interdict could not be obtained before the morning of 14 February 2022 the first respondent deployed the National Emergency Response Team to prevent the applicant from entering his workplace.

[73] Given that the first respondent has had no personal dealings with the applicant since he took occupancy of the post of the first respondent in September 2021, and given the actions taken by the first respondent to keep the applicant away from the workplace since February 2022, it is not unreasonable for the applicant to believe that the first respondent’s conduct is neither impartial nor independent. Without any other explanation, it is not objectively unreasonable for the applicant to hold a subjective belief that the conduct of the first respondent is in keeping with that of his predecessors.

[74] In further support of its assertion that the applicant’s request is not made in good faith, the first respondent has suggested that the failure on the part of the applicant to have even mentioned the issue of his protected disclosures at the previous section 188A(11) enquiry supports such a conclusion.

[75] The first respondent’s objection in this regard is misplaced. An enquiry under section 188A(11) is no more than an enquiry under section 188A(1), albeit arising in a different manner. It is not for an arbitrator in an enquiry under section 188A(11) to determine whether the enquiry is itself an occupational detriment or the disclosure made was a protected disclosure as defined.[22] The purpose of the enquiry is purely to enquire into the conduct or the capacity of an employee, in precisely the same manner as would be done in an internal disciplinary enquiry.

[76] In consideration of the aforementioned, I find that the applicant’s subjective belief is, objectively assessed, one which is reasonable, there being a discernible nexus between the protected disclosure made in 2018 and the present charges, coupled with the fact that the first respondent’s most recent conduct is capable of being viewed as no more than the continuation of a pattern of victimisation of the applicant.

[77] I accordingly find that the applicant’s allegation that the present disciplinary action is in contravention of the PDA is bona fide, and the applicant therefore has a clear right to the relief sought by him in terms of section 188A(11) of the LRA.

[78] The relief sought by the applicant that the enquiry initiated by the first respondent, to be chaired by the second respondent, be converted to an inquiry by arbitrator in accordance with section 188A(11) of the LRA, and the ancillary relief related thereto, falls to be granted.

[79] The rule nisi issued will accordingly be confirmed.

Costs

[80] Whilst I am mindful of the general principle in labour matters that costs do not inevitably follow the result, and the further principle that the issue of an ongoing employment relationship militates against the granting of an order of costs, I nonetheless intend to exercise my discretion in favour of granting a costs order in favour of the applicant.

[81] The applicant’s suspension was unlawful and, by the time of the hearing of this matter, the first respondent was obliged to concede as much. It nevertheless insisted on endeavouring to retain its position that the applicant be excluded from his workplace, premised on an illegality, on the basis of a technical, legal point.

[82] As to the further issue of the enquiry under section 188A(11) of the LRA, the applicant was evidently bona fide in his request. The request, if acceded to, would merely have resulted in the enquiry proceeding in a different forum, with no conceivable harm to the first respondent’s right to discipline him for his alleged misconduct.

[83] The applicant ought never to have been obliged to have approached this court, at a cost to himself, to enforce his rights. In the circumstances, I am of the opinion that fairness requires that the first respondent pay the applicant’s costs.

Order

1. The precautionary suspension imposed by the first respondent on the applicant on 28 February 2022 is declared to have lapsed and expired on the basis that the disciplinary enquiry against the applicant has

not been held within sixty (60) days of the commencement of the precautionary suspension.

2. The disciplinary enquiry initiated by the first respondent against the applicant by way of charge sheet dated 22 March 2022, to be chaired or presided over by the second respondent, is to be converted into an inquiry by arbitrator in accordance with section 188A(11) of the Labour Relations Act 66 of 1995, as amended.

3. The first respondent be ordered to immediately take all necessary steps and complete and submit all necessary forms to bring an application before the General Public Sectoral Bargaining Council (GPSSBC) in terms of section 188A(1) and (2) of the LRA.

4. The first respondent is interdicted and restrained from holding the disciplinary enquiry against the applicant, which was scheduled to commence on Tuesday, 24 May 2022 in Pretoria.

5. The first respondent is directed to pay the costs of the application.

6. The first respondent’s conditional counter application is dismissed, with no order as to costs.

Kelsey Allen-Yaman

Acting Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT: Mr B Mgaga, Garlicke & Bousfield Inc

RESPONDENT: Mr Kruger SC with Ms D’Alton, briefed by the State Attorney, Pretoria

[1] Answering affidavit, paragraph 6

[2] First respondent’s supplementary affidavit, SA1

[3] Applicant’s founding affidavit, MN1

[4] First respondent’s answering affidavit, SH6

[5] Founding affidavit, MN5

[6] Founding affidavit, MN6

[7] Founding affidavit, annexure MN7

[8] Founding affidavit, MN9, Judgment under J158/2022, at paragraph 18

[9] Founding affidavit, MN9, Judgment under J158/2022

[10] Founding affidavit, MN10

[11] Replying affidavit, MN12(a)

[12] Founding affidavit, MN14

[13] Founding affidavit, MN15

[14] Founding affidavit, MN16

[15] At paragraphs 16 - 17

[16] At paragraph 27

[17] Paragraph X supra

[18] First respondent’s Notice of Application, prayer 3

[19] Supplementary affidavit, paragraph 10

[20] Nxele v National Commissioner: Department of Correctional Services and Others (2018) 39 ILJ 1799 (LC) at paragraph 31

[21] Founding affidavit, MN9, Judgment under J158/2022, paragraph 18

[22] Tsibani v Estate Agency Affairs Board and Others (J642/2021) [2021] ZALCJHB 150 (24 June 2021) at paragraphs 71 - 72