Phori v Minister of Police and Others (2552/2021) [2021] ZAFSHC 221 (17 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION

Case No.: 2552/2021

In the matter between:

MODISANG PHORI

Applicant

and

MINISTER OF POLICE

First Respondent

M. A. MAKHELE Second Respondent

S. P. KUBHEKA

Third Respondent

M. M. MBELOANE

Fourth Respondent

Coram: Opperman, J

Date of hearing: 10 September 2021

Delivered: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 17 September 2021. The date and time for hand-down is deemed to be 17 September 2021 at 15h00.

Summary: Application for Leave to Appeal - Jurisdiction - Labour Law in High Courts

JUDGMENT

INTRODUCTION

[1] I ruled on 2 July 2021 that the plea of the respondents challenging the jurisdiction of this Court to adjudicate the matter is upheld with costs.

[2] This case is a stark reminder that the reigning issue of jurisdiction between the High Court and the Labour Court may lead to abuse; on the one hand, and mistaken judgments on the other. I stated in the judgement a quo in this case:

[2] As a rule, it is illegal for the Labour Court to adjudicate a case that is outside the realm of Labour Law; it is illegal for a High Court to adjudicate a case that is located within the realm of the Labour Court.

[8] …It will cause absurd practical results if the adjudication of labour issues becomes the norm in High Courts. It will defeat the purpose of the establishment of the Labour Courts and cause litigation that simply is bad in law.

[3] The matter started off as an urgent application but the urgency ruled by the then presiding judge to exist, became significantly diluted when the matter was postponed from 8 June 2021 to 25 June 2021. This was to give the applicant the opportunity to file a “properly Amended Notice of Motion”[1] as well as; to both parties, Supplementary Affidavits and Heads of Argument. The disciplinary hearing was postponed sine die.

[4] To bring applications of this nature on the basis of urgency is in any event discouraged. The sentiment in the matter of Jiba v Minister: Department of Justice and Constitutional Development and others 2009 (10) BLLR 989 LC at paragraph 17 was echoed in SF Mndebele v Govan Mbeki Municipality and others on 22 March 2021, Case no. 775/2021, Mpumalanga Division of the High Court:

[53] Urgent applications to “review and set aside” preliminary rulings made during the course of disciplinary inquiry or to challenge the validity of the institution of proceedings ought to be discouraged.

[5] It happens that the mere use of the word “unlawful” does not in reality make the facts alleged in the pleadings by the applicant an unlawfulness or illegality for the purpose of the adjudication of jurisdiction. This was the issue in casu. The words “unlawful”, “invalid” and “null and void” have been instrumental in bringing many a case to the High Court whilst the real cause of action lies within the dominion of the Labour Courts. Procedurally unfair labour processes adjudicated in Labour Courts are also illegal, invalid, unconstitutional and unlawful in the bigger scheme of the law.

[6] In Steenkamp v Edcon Ltd (National Union of Metalworkers of SA intervening) 2016 (3) SA 251 (CC) it was remarked that:

[125] If the procedural requirements of s 189 or s 189A are not complied with in circumstances where there is no acceptable reason for non-compliance, the result will be that the dismissal was not effected in accordance with a fair procedure as contemplated in s 188(1)(a)(ii). It is, therefore, procedurally unfair - not unlawful, invalid and of no force or effect. In substance the applicants' complaint is that the dismissals are procedurally unfair. However, the applicants have dressed their complaint up as something else so that they can avoid the mechanisms and remedies under the LRA and seek a remedy that falls outside of the LRA in relation to dismissals. They do so in an attempt to get maximum benefit that is available only when the breach relied upon is not that of the provisions of the LRA. What the applicants are doing is not exactly forum-shopping but it is analogous to forum-shopping. Where the law permits forum-shopping, a litigant cannot be denied relief just because it is engaging in forum-shopping. However, in this case there is no room for granting the remedy sought by the applicants. (Accentuation added)

[7] Another imperative is that each case must be adjudicated on its own merits.

[8] The uniqueness of this case caused me to conclude that, notwithstanding the reliance on unlawfulness; the facts alleged by the applicant in truth and law ousted the jurisdiction of the High Court.

[14] As said; primarily, the non-compliance with the time frames suggested in the Regulations forms the basis of the cause of action. In addition, the place where, period during which and the circumstances and conditions in terms of which an employee shall be given an opportunity to examine any physical or documentary evidence or report are alleged to be unclear. There was not any impediment of a constitutional right; as an administrative action or breach of contract, alleged. It is a factual process-issue based on timeframes and information vested squarely within Labour Law Regulations as quoted by the applicant that is the cause of action.

THE UNDISPUTED FACTS ON WHICH THE APPLICANT RELIED

[9] These are the findings of the facts a quo on which the applicant relied:

[11] In November 2020 the applicant attended the now well-known matter of S v Bakili and others; a criminal matter that is ongoing in the Free State High Court. It turns on the assassination of one Dr Siemens at a local shopping centre. On 25 November 2020 Brigadier Khubeka: Section Head of Intelligence received a phone call from a contact that informed him of an incident that took place at the High Court during the murder trial. The contact alleged that Colonel Phori, the applicant, took photos of a witness during court proceedings and when the judge realised this, he stopped the proceedings and voiced his dismay with the situation. Colonel Phori was removed from the court. The incident made it into the media and caused a ruckus. A preliminary inquiry found that the conduct of the officer was unprofessional and unbecoming. His conduct allegedly damaged the image of the South African Police Service. The sensitivity of the matter lies in the fact that the witness was a self-confessed member of the team that assassinated the deceased and he turned state witness. His life was and is at peril.[2] The wheels of disciplinary proceedings were now set in motion in terms of the South African Police Service Discipline Regulations, GNR.1361 of 2016, GG 40389.

[12] It is common cause that the relationship of the parties is as between employer and employee; the latter, Colonel Phori, rendering service under the authority of the former. There is not a whiff of administrative action or any other cause of action but for unfairness in labour processes.

[13] On 21 May 2021 the Legal Practitioner that represents the applicant, Mr Rampai, addressed a letter[3] to the Provincial Head of the South African Police Services: Free State wherein he voiced their objections to the process that were followed to initiate the hearing. I quote verbatim from the letter that is the cause of action.

1. We refer to the above-mentioned matter and confirm that we act on behalf of our client herein, Colonel M Phori.

2. It is our client’s instruction that, on or about 12 May 2021, he was charged and notified to appear before a “departmental” disciplinary hearing on allegations of misconduct on 24 & 25 May 2021. The said disciplinary hearing is said to have been convened in terms of the South African Police Service Discipline Regulations (2016), in particular Regulation 8(2) thereof.

3. We confirm that we have since perused and considered the said Notice to Appear at the Disciplinary Hearing together with the attached documents thereto and established the following:

3.1 An investigation into the alleged misconduct was sanctioned on or about 18 December 2020, and the appointment of an Investigating Officer only became effective on 5 January 2021 upon receipt of the appointment letter on said date. This was already beyond the stipulated 30 calendar days within which an investigation ought to have been completed;

3.2 A regulation 8(1) notice to our client (dated 24 December 2021) was only served on 12 January 2021, coincidentally being the same date on which some of the statements were taken from possible witnesses;

3.3 An investigation report was finalized on or about 14 January 2021 and endorsed in terms of regulation 8(1) by the supervisor only two weeks later on 01 February 2021;

4. In consideration of the above indisputable facts, we confirm that intended disciplinary hearing is fatally flawed in law and therefor unlawful, calling for its retraction for the following reasons:

5. Non-compliance with Regulation 8(1) in that the outcome of the investigation was never referred to the employer representative within 7 working days to initiate a disciplinary inquiry. The last date for such referral would, at best, have lapsed on 09 February 2021 and at worst, on 25 January 2021.

6. Non-compliance with regulation 8(2) in that our client was never charged with misconduct within 15 working days. As already pointed out above, our client was only served with a notice to attend a disciplinary hearing on 12 May 2021, obviously way beyond the required 15 working days as stipulated in regulation 8(2).

7. Furthermore, non-compliance with regulation 5(2) in that the employer has failed to consider factors under regulation 5(2)(a), (b) and (c) in making the decision to institute disciplinary action against our client.

8. To this end, we hold instructions to demand from you, as we hereby do, to provide a written undertaking that the intended disciplinary inquiry is immediately retracted, called off and that our client is no longer a subject of such a disciplinary inquiry. Your written undertaking is to be directed to our offices no later than 10h00, Monday, 24 May 2021, failing which we hold further instructions to approach the High Court in Bloemfontein to obtain an urgent interdict order prohibiting you to proceed with the disciplinary inquiry scheduled. Take note that a punitive cost order shall be sought against yourself should our client have to approach the High Court as a result of your failure and/or refusal and/or negligence to provide our offices with the required undertaking within the stipulated time. (Accentuation added)

[14] As said; primarily, the non-compliance with the time frames suggested in the Regulations forms the basis of the cause of action. In addition, the place where, period during which and the circumstances and conditions in terms of which an employee shall be given an opportunity to examine any physical or documentary evidence or report are alleged to be unclear. There was not any impediment of a constitutional right, as an administrative action or breach of contract, alleged. It is a factual process-issue based on timeframes and information vested squarely within Labour Law Regulations as quoted by the applicant that is the cause of action.

[10] The reliance of the applicant on the Baloyi[4] and Mndebele[5] cases during the application for leave to appeal do not rescue the applicant on the facts. The cases pivoted on constitutional issues under administrative action in Public Law and breach of contract under the Law of Contract. The Baloyi matter highlights that contractual rights exist independently of the LRA and employees are not deprived of the common law right to enforce the terms of a fixed-term contract of employment and the LRA. I did rule in accordance a quo.

[11] The remedy sought shows that this case, on the facts, might be premature and moot. One cannot but wonder why mediation could not have been initiated by the parties to settle on revisiting the situation and an amendment of the process, if necessary, to address the issues. Uniform Rule 41A serves as a valuable tool to the aspiration of avoiding costs and time.[6]

[12] The issue of non-compliance to the Regulations could either have been raised at the disciplinary hearing or; if it caused prejudice, as part and parcel of the whole of the disciplinary process at the outcome of the hearing. This application will not prevent any further disciplinary action against the applicant. With due respect to the rights of the applicant in terms of section 34 of the Constitution of the Republic of South Africa, 1996; the delay of the application and an appeal might be more expensive in time and money. It is clear that the applicant realised that this case will not be the end of the matter when they prayed for the following in the Notice of Motion:

3. Interdicting and restraining The Respondents (sic) from continuing with the disciplinary proceedings, which proceedings were instituted by way of a “Notice to Appear at a Disciplinary Hearing” dated the 7th of May 2021 and received by the Applicant on 12 May 2021; until the Respondents comply with the South African Police Service Discipline Regulations (2016); made under section 24(1) of the South African Police Service Act (88 (sic) of 95); Government Gazette No. 40389 on 1 November 2016. (Accentuation added)

[13] The confusion of the applicant of the law was reiterated when there was an attempt to, in addition to all the other claims, claim breach of contract in paragraph 14 of their Heads of Argument[7] a quo. It states that there has been non-compliance with the provisions of the Regulations and that this material deviation from legal prescripts constitutes a material breach of contract. The contract was not made part of the evidence before court and this point could not and cannot be adjudicated nor entertained. It is not clear whether it is a breach of constitutional fairness under Public Law or breach of contract under the Law of Contract that brought the applicant to the High Court. What is a fact is that it was the alleged non-compliance to the Regulations that caused a defective labour process that caused the litigation.

[15] The said Regulations were promulgated as pure and unequivocal Labour Law in terms of section 24(1) of the Police Services Act 68 of 1995. These read among others:

24. Regulations. — (1) The Minister may make regulations regarding—

(f) labour relations, including matters regarding suspension, dismissal and grievances;

(g) (i) the institution and conduct of disciplinary proceedings or inquiries;

(ii) conduct by members that will constitute misconduct;

(iii) the provisions, if any, of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), that shall apply mutatis mutandis to disciplinary proceedings or inquiries under this Act;

(iv) the attendance by a member or any witness, of such disciplinary proceedings or inquiries;

(v) the circumstances under which such disciplinary proceedings or inquiries may be conducted or proceeded with in the absence of the member accused of misconduct or affected by such an inquiry;

(vi) the hearing and submission of evidence at such disciplinary proceedings or inquiries;

(vii) competent findings and sanctions in respect of such disciplinary proceedings or inquiries; and

(viii) review and appeal in respect of such disciplinary proceedings or inquiries;

(h) the issue of a code of conduct for the Service and the upholding thereof; …

[16] The Regulations referred to are pure and definite Labour Law namely GNR.1361 of 2016, South African Police Service Discipline Regulations, GG 40389. [8] [9] [10]

[17] The relief[11] sought is, again, pure Labour Law:

2. Declaring the disciplinary proceedings against the Applicant, which proceedings were instituted by way of a “Notice to Appear at the Disciplinary Hearing”: dated the 7th of May 2021 and received by the Applicant on 12 May 2021 as unlawful, invalid and null and void;

3. Interdicting and restraining The Respondents (sic) from continuing with the disciplinary proceedings, which proceedings were instituted by way of a “Notice to Appear at a Disciplinary Hearing” dated the 7th of May 2021 and received by the Applicant on 12 May 2021; until the Respondents comply with the South African Police Service Discipline Regulations (2016); made under section 24(1) of the South African Police Service Act (88 (sic) of 95); Government Gazette No. 40389 on 1 November 2016.

[14] The applicant claimed arbitrary actions but did not state arbitrariness. The alleged mistakes by the respondent are the timeframes and stipulation of the place where access to information may be obtained. The mistaken perception of unlawfulness by the applicant is depicted in the words of the applicant himself. The justification by the applicant for bringing the matter to this court is that should the Respondents be allowed to continue with an invalid and unlawful process it would be cumbersome and extremely costly on his part to pursue a claim for unfair dismissal which could take up many years to be finalised given the permissible processes of appeal and/or review in our legal system. It is not the law but convenience that the applicant wants to cause jurisdiction. The avenue that he chose is unfortunately also a costly and time-consuming exercise.

19. I state this belief given the protracted history of harassment, sideling and general disharmony encountered in my workplace from my supervisor(s) and superiors. Given the classified status of information that comes with the nature of my work, I am unable to attach certain correspondence that is demonstrative of the history referred to above, unless I am so directed by this Honourable Court.

20. I am of an advanced age, 57 to be specific, and fairly close to my retirement. I have at all times executed my work responsibilities with pride and diligence over a period of more than 20 years. Should the Respondents be allowed to continue with an invalid and unlawful process it would be cumbersome and extremely costly on my part to pursue a claim for unfair dismissal which could take up many years to be finalised given the permissible processes of appeal and/or review in our legal system. Furthermore, there would be no prospects of securing a similar or other form of employment given my age.

22. If allowed to continue, the situation will perpetuate the violation of my right to fair labour practise and right to fair processes on one hand, and allow the Respondent, on the other hand, to violate various mandatory prescripts set out in the Regulations. I will be severally prejudiced if I am not afforded all the rights to which I am entitled as an employee, including compliance with the various legal provisions contained in the Regulations. (Accentuation added)

THE LAW AS WAS PERCEIVED A QUO

[15] The Law as was perceived a quo is reiterated:

[2] As a rule, it is illegal for the Labour Court to adjudicate a case that is outside the realm of Labour Law; it is illegal for a High Court to adjudicate a case that is located within the realm of the Labour Court. The Constitutional Court has laid down the law on the issue in Gcaba v The Minister for Safety and Security 2010 (1) SA 238 (CC);[12] this court is bound by the ruling. By implication, when jurisdiction is contemplated, each case must be adjudicated on its specific pleadings and with vigilant application of the Gcaba - rules. These are the major findings of the Constitutional Court on 7 October 2009:[13]

1. The same conduct may threaten different rights and give rise to different causes of action in law, often to be pursued in different courts.

2. The constitutional and legal order is one coherent system for the protection of rights, and legislation must not be interpreted to exclude or unduly limit rights.

3. When, however, the Constitution itself recognises rights in different specific areas of law, and mandated the legislature to specifically create tailor-made rules and structures for those areas, it is preferable to use these.

4. Employment and labour relationship issues do not generally amount to administrative action under PAJA: this is implicit in the constitutional recognition of the distinct rights to fair labour practices in section 23 of the Constitution (regulating the employment relationship between employer and employee) and just administrative action in section 33 of the Constitution (which deals with the relationship between the bureaucracy and citizens).

5. When the conduct of the State as employer has no direct consequences for other citizens, it does not amount to administrative action.

6. The special dispute resolution mechanisms created by the LRA, where section 157(1) provides that the Labour Court has exclusive jurisdiction over matters that the LRA prescribes, should be determined by it, and this provision has to be given content to protect the special status of the Labour Court.

7. On the other hand, section 157(2), which confirms the concurrent jurisdiction of the Labour Court and High Court in the circumstances prescribed therein, may not be read to permit the High Court to have jurisdiction over those matters that fall within the exclusive purview of the Labour Court.

8. The LRA does not destroy causes of action in respect of matters which might well be heard by the High Court, and it shall not be interpreted to do so. Where a remedy lay in the High Court, section 157(2) may not be read to mean that it no longer laid there.

9. Jurisdiction must be assessed based on the pleadings, not the substantive merits of a case. If the pleadings assert a claim under the LRA that must be determined by the Labour Court, the High Court will lack jurisdiction.

[3] A definition of Labour Law was researched by Van Jaarsveld et al[14] with reference to case law and legislation and he came to the conclusion that in general, labour law is the totality of rules in an objective sense that regulate legal relationships between employers and employees, the latter rendering service under the authority of the former, at the collective as well as the individual level, between employers, and employees mutually, as well as between employers, employees and the state. Imperative is the fact that he includes “between employers, employees and the state.” The mere fact that the State might be the employer does not bring the matter into Administrative Law; neither does the words “unlawful”[15] or “legality”. Unlawfulness and legality read within the above definition translates, reflects and ends in unfair labour practise. It is specifically so because Labour Law is often about fair process in terms of legislation and precedent. The matter in casu confirms that the Labour Relation Act is not the only law that guides in labour action or conduct. It starts, as always, with the Constitution of the Republic of South Africa, 1996 and may end in the Police Services Act 68 of 1995; as is the case here.

[4] The Labour Relations Act No. 66 of 1995 states the purpose of this act and the Labour Courts to be to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this act, which are amongst others to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution of the Republic of South Africa, 1996; … This is exactly what Colonel Phori claims and how he formulated his plight and the Labour Court has specific and exclusive jurisdiction to this. The applicant unequivocally asserted and inserted his claim within the exclusive jurisdiction of the Labour Court when he testified in his Founding Affidavit that if the conduct of the respondents is allowed to continue:

… the situation will perpetuate the violation of my right to fair labour practise and right to fair processes on one hand, and allow the Respondents, on the other hand, to violate the various mandatory prescripts set out in the Regulations. I will be severely prejudiced if I am not afforded all the rights to which I am entitled as an employee, including compliance with the various legal provisions contained in the Regulations.[16]

[5] I interpose to caution that there are two factors to be mindful of when jurisdiction between the Labour Court and High Court is pondered; the issues of administrative action and concurrent jurisdiction.

[6] I align myself with the reasoning of Hoexter and Langa, CJ on administrative actions and as summarised by Mupangavanhu et al: [17]

Hoexter, nevertheless, agrees with Langa CJ's reliance on the PAJA definition based on the fact that this approach accords with the constitutional principle that general norms should be resorted to only when norms of greater specificity have run out or when testing the constitutionality of a specific norm against the more general norm.

In Gcaba it was correctly confirmed and reinforced that the failure to appoint the applicant was not an administrative action subject to review. The reasoning advanced was that section 33 of the Constitution does not regulate the relationship between state employer and its employees. The relationship between the parties was based on an employment contract and did not constitute an administrative action since the decision posed neither an impact on nor implications for other citizens. From an analysis of both Chirwa and Gcaba, it is in our view settled law that the conduct of a public sector employer towards an employee does not necessarily amount to administrative action. (Accentuation added)

[7] The applicant in this case does not rely on a breach of his contract with the South African Police Service. Grogan[18] correctly noted that the Gcaba-judgment leaves the question whether employees may still approach the High Court with claims for alleged breach of contract open; this is where they would also have a remedy under the LRA. The SCA did rule on the issue and allowed litigants to bring their case to the High Court under the Law of Contract. The applicant must formulate the case inside the appropriate legal domain to be effective in vesting jurisdiction in the High Court. This happened in Boxer Superstores Mthatha v Mbenya 2007 (5) SA 450 (SCA) when Cameron, JA wrote:

[12] This characterisation may be correct, so far as it goes, but it leaves out of account the fact that jurisdictional limitations often involve questions of form, and that the employee in this case, as already mentioned, formulated her claim carefully to exclude any recourse to fairness, relying solely on contractual unlawfulness. In Fedlife, Nugent AJA pointed out:

'Whether a particular dispute falls within the terms of s 191 depends upon what is in dispute, and the fact that an unlawful dismissal might also be unfair (at least as a matter of ordinary language) is irrelevant to that enquiry. A dispute falls within the terms of the section only if the ''fairness'' of the dismissal is the subject of the employee's complaint. Where it is not, and the subject in dispute is the lawfulness of the dismissal, then the fact that it might also be, and probably is, unfair, is quite coincidental for that is not what the employee's complaint is about. (Accentuation added)

[8] The matter of concurrent jurisdiction was also declared in the Constitutional Court and the reasoning on the interpretation of the provisions in the LRA, particularly sections 157(1) and (2), is that of purposive interpretation. The Court held that the purpose of subsection 2 is to extend the jurisdiction of the Labour Court to disputes concerning the alleged violation of any right entrenched in the Bill of Rights that arises from employment and labour relations, rather than to restrict or extend the jurisdiction of the High Court. The majority judgment explained that the purposive approach does not limit the jurisdiction of the High Court on constitutional issues but once there is another court that specialises in and has expertise on specific matters, such as employment, and that court has the mandate to adjudicate over labour matters; by implication, the jurisdiction of the High Court is ousted. It will cause absurd practical results if the adjudication of labour issues becomes a norm in High Courts. It will defeat the purpose of the establishment of the Labour Courts and cause litigation that simply is bad in law.

[9] On 23 February 2013 the Supreme Court of Appeal ruled in Provincial Commissioner, Gauteng: South African Police Service and another v Mnguni [2013] 2 All SA 262 (SCA),[19] and the issues are similar to those in casu:

[25] I have held above that we are here concerned with what is quintessentially a labour issue. Fairness in labour practices is guaranteed in section 23 of the Constitution and section 185 of the LRA, which also assures every employee the right not to be unfairly dismissed. Stripped of all excess, the respondent’s complaint is essentially one of unfair dismissal which ought to have been pursued in the Labour Court, which has exclusive power to enforce fair labour practice rights. It follows that the respondent’s claim for a common law review, in the High Court, of the appeal tribunal’s confirmation of his dismissal was bad in law and falls to be dismissed.

THE GROUNDS OF APPEAL

[16] The grounds of appeal, directly quoted, are:

THE GROUNDS FOR THE APPLICATION FOR LEAVE TO APPEAL:

Jurisdiction:

14. The applicant, with respect, contents that the Court erred in finding that the applicant’s case is formulated within labour law and on the unfairness of the disciplinary process and submits that another court would, with respect:

14.1 Find that, based on the case as pleaded by the applicant in the founding affidavit, the applicant challenged the lawfulness of the disciplinary process;

14.2 Find that the High Court has jurisdiction to determine the application; and

14.3 Dismiss the respondents’ plea challenging the Court’s jurisdiction.

15. The applicant further contends, with respect, that another court would find that the applicant has made out a case on the merits and would grant the declaratory relief claimed by the applicant.

16. The extent of the High Court’s jurisdiction in relation to claims that arise in labour context were recently considered and enunciated by the Constitutional Court in Baloyi v Public Protector.[20]

17. I shall in what follows set out the relevant legislative framework and legal principles as stated in Baloyi.

17.1 The High Court has in terms of section 169(1) of the Constitution[21] jurisdiction to adjudicate any matter, except those matters that (i) fall within the exclusive jurisdiction of the Constitutional Court; (ii) the Constitutional Court has agreed to hear directly in terms of section 167(6); or (iii) have been assigned by legislation to another court with a status similar to that of the High Court; [22]

17.2 The Labour Court is in terms of section 151(2) of the LRA designated as a court with a status similar to that of a High Court; [23]

17.3 Section 157(1) of the LRA provides for the exclusive jurisdiction of the Labour Court in all matters that are in terms of the LRA or other law to be determined by the Labour Court. Sections 68(1), 77(2)(a), 145 and 191 of the LRA proffer examples of matters that are to be determined by the Labour Court and are by virtue of section 157(1) of the LRA within the exclusive jurisdiction of the Labour Court;[24]

17.4 The High Court’s jurisdiction in respect of employment related disputes is ousted only where the dispute is one for which the LRA creates specific remedies, including, for example unfair dismissal disputes;[25]

17.5 The High Court’s jurisdiction is not ousted by section 157(1) of the LRA simply because a dispute is one that falls within the overall sphere of employment relations;[26]

17.6 The Labour Court has exclusive jurisdiction in respect of a dispute about the fairness of a dismissal or a dispute about an unfair labour practice;[27]

17.7 The assessment of jurisdiction must be based on an applicant’s pleadings as opposed to the substantive merits of the case;[28]

17.8 The same set of facts may give rise to several different causes of action. Where a litigant is required to bring a certain cause of action before a specifically competent forum, it does not follow that they are bound to do so. Moreover, the fact that the cause of action is limited to certain fora must not be interpreted as obliging an applicant only to pursue that particular cause of action;[29]

17.9 The mere potential for an unfair dismissal claim does not oblige a litigant to frame her claim as one of unfair dismissal and to approach the Labour Court notwithstanding the fact that other potential causes of action exist;[30]

17.10 It is important not to conflate the question of whether a court has jurisdiction to hear a pleaded cause of action, with the prospects of success of that cause of action. When assessing whether its jurisdiction is engaged, a court might be of the view that the litigant should have pursued a different cause of action, or that she would have had a better chance of success had she done so. However, these views are irrelevant to the Court’s competence to hear the matter;[31]

17.11 The Court is called upon, when determining the issue of jurisdiction, to determine whether the specific cause of action relied upon by the applicant falls within the jurisdiction of the High Court or the Labour Court, or both.[32]

18. It is respectfully submitted that the case pleaded by the applicant is not one of unfair labour practice but a challenge to the lawfulness and validity of the disciplinary proceedings. It is the applicant’s case in its founding papers that due to the non-compliance with the said Regulations, the proceedings amount to a nullity, unlawfulness and a void process.[33]

19. The said Regulations on which the applicant relies – Regulation 8(1)[34]; 8(2)[35]; 8(4)(a)[36]; and 5(2)[37] – are peremptory. In terms of these Regulations:

19.1 The employer must assess the seriousness of the alleged misconduct after considering the factors listed in regulation 5(2)(a) to (c);[38]

19.2 The employer representative must within 15 working days, charge the employee with misconduct, by serving a written notice to attend the disciplinary hearing in the form determined by the National Commissioner;[39]

19.3 The written notice of the disciplinary hearing must provide for the details listed in regulation 8(3)(a) to (d);[40]

19.4 The notice to appear at the hearing must be served on the employee at least 10 calendar days before the date of the hearing.[41]

20. The Regulations do not make provision for the deviation by the employer from the said provisions. The chairperson of the disciplinary hearing also does not have in (sic) the power to condone the non-compliance with the said Regulations.

21. In the premise, it is the applicant’s case, as pleaded in the founding papers, that non-compliance with the said provisions invalidate the disciplinary proceedings, resulting in such proceedings to be unlawful and invalid.[42]

22. The case made out by the applicant in founding is therefore premised on such unlawfulness and not on unfair labour practice or any of the remedies under the LRA.

23. In Steenkamp v Edcon[43] the Constitution Court held that ‘invalid dismissals and a declaratory order that a dismissal is invalid and of no force and effect fall outside the contemplation of the LRA.’

24. In South African Municipal Workers Union obo Makofane v Matjhabeng Municipality[44] the Labour Court also held that the Labour Court does not have jurisdiction to decide unlawful suspensions.

25. The applicant’s case, like the case in Makofane, is not premised on any of the provisions of the LRA but premised on the contention that the disciplinary process is unlawful and invalid because of the non-compliance with the Regulations.

26. I submit that, in the context of the applicant’s case, the Labour Court does not have jurisdiction to determine and declare the disciplinary process unlawful, invalid and void and that the High Court is vested with such jurisdiction.[45]

27. In the premise, it is respectfully submitted that there are reasonable prospects that another court would find that the High Court has jurisdiction to determine the matter, based on the case pleaded by the applicant, and that the Court erred in finding that the applicant’s claim is premised on unfairness in the labour process and that it constitutes a claim under the LRA.

28. In the premise, it is respectfully submitted that another court would dismiss the respondents’ special plea of lack of jurisdiction.

APPLICATION FOR LEAVE TO APPEAL

[17] Within the atmosphere of the above, the standards or guidelines that evolved as to when cases may be send on appeal, must be heeded.

[18] The right to appeal is, among others, managed by the application for leave to appeal. It may not be abused but the hurdle of an application for leave to appeal may never become an obstacle to justice in the post-constitutional era. The Superior Courts Act 10 of 2013 regulates the adjudication for leave to appeal specifically. The interpretation of the legislative test evolved in case law.

[19] Historically the rule was: “In that reasonable prospect exists that another Court, sitting as the Court of Appeal, would come to different findings and conclusions on the facts and the law.”[46] It is being worded differently in the Superior Courts Act 10 of 2013[47] per section 17(1) to read:

(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that -

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.

[20]

The words “would” and “only” caused some to opinion that the bar for granting leave to appeal has been raised.[48] All it says is that the matter must be pondered in depth and with careful judicial introspection. It did not raise the bar because access to justice is access to justice. There must be a sound, rational basis for the conclusion that there are prospects of success on appeal and another court would come to another conclusion.

[21] In Shinga v The State & another (Society of Advocates (Pietermaritzburg Bar intervening as Amicus Curiae)); S v O’Connell & others 2007 (2) SACR 28 (CC) at [53] it was held that applications for leave to appeal is a judicial task of some delicacy and expertise. This task requires a careful analysis of both the facts and the law that provided the basis for the judgement. Presiding officers should approach the question whether another court may reach a different conclusion with “intellectual humility and integrity, neither over-zealously endorsing the ineluctable correctness of the decision that has been reached, nor overanxiously referring decisions that are indubitably correct to an appellate Court.”

[22] In S v Smith 2012 (1) SACR 567 (SCA) the court laid down the approach to an application for leave to appeal as follows:

What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.

[23] With reference to the Smith-case Schippers AJA in MEC Health, Eastern Cape v Mkhitha (2016) ZASCA 176 (25 November 2016); JDR 2214 SCA noted that:

[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.

[17] An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.

[18] In this case the requirements of section 17(1)(a) of the Superior Courts Act were simply not met. The uncontradicted evidence is that the medical staff at BOH were negligent and caused the plaintiff to suffer harm. The special plea was plainly unmeritorious. Leave to appeal should have been refused.

[24] In Mostert and others v Nash and another 2018 (5) SA 409 (SCA) it was confirmed that:

[25] While courts are entitled to prevent any abuse of process, it is a power that should be sparingly exercised. The starting point is the constitutional guarantee of the right of access to courts in s 34 of the Constitution. That right is of cardinal importance for the adjudication of justiciable disputes. But, where the procedures of the court are being used to achieve purposes for which they are not intended, that will amount to an abuse of process.

CONCLUSION

[25] Careful consideration of the grounds of appeal, due consideration to the address by Counsel for both the applicant and the respondent during the hearing of the application for leave to appeal and the fact that different courts may have different interpretations of the facts and the application of the law thereon, inevitably lead to a finding that there is a sound rational basis for the conclusion that there are prospects of success on appeal.

[26] The words of the Constitutional Court in the Baloyi-matter seals the application for leave to appeal for the applicant:

[39] Crucially, however, where a litigant is required to bring a certain cause of action before a specifically competent forum, it does not follow that they are bound to pursue a claim under that cause of action simply because it is possible to do so. Put differently, the fact that a cause of action is limited to certain fora must not be interpreted as obliging an applicant only to pursue that particular cause of action.

[27] Counsel alluded in their arguments to the fact that history showed that there is not consensus in this division on the issue. Although the applicant prayed for the matter to be send on appeal to the Full Bench of the Court; Advocate Pienaar on behalf of the applicant conceded that the Supreme Court of Appeal might be the appropriate forum to adjudicate the case and bring certainty in law. I align myself with this. A ruling by the Supreme Court of Appeal will settle the perceived ambiguity.

[28] ORDER

1. The application for leave to appeal is granted and against the whole order of the court a quo to the Supreme Court of Appeal.

2. The costs for the application for leave to appeal to be costs in the appeal.

M OPPERMAN, J

APPEARANCES

Counsel for the Applicant Advocate CD Pienaar

Rampai Attorneys

48 General Hertzog Street

Dan Pienaar

BLOEMFONTEIN

Counsel for Respondents Advocate JJ Buys

State Attorney

49 Charlotte Maxeke Street

[1] Court Order dated 8 June 2021 at page 76 of the Bundle.

[2] Page 31 of the Bundle.

[3] Page 53 to 54 of the Bundle and reiterated in the Founding Affidavit from page 9 to page 15 of the Bundle.

[4] [2020] ZACC 27.

[5] Case no. 775/2021, judgment on 22 March 2021, Mpumalanga Division of the High Court by HF Brauckmann, AJ.

[6] Uniform Rule 41A 2(a) In every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to or opposes referral of the dispute to mediation. 3(a) Notwithstanding the provisions of sub-rule (2), the parties may at any stage before judgment, agree to refer the dispute between them to mediation: Provided that where the trial or opposed application has commenced the parties shall obtain the leave of the court (b) A Judge, or a Case Management Judge referred to in rule 37A or the court may at any stage before judgment direct the parties to consider referral of a dispute to mediation, whereupon the parties may agree to refer the dispute to mediation.

[6] Uniform Rule 41A

2(a) In every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to or opposes referral of the dispute to mediation.

3(a) Notwithstanding the provisions of sub-rule (2), the parties may at any stage before judgment, agree to refer the dispute between them to mediation: Provided that where the trial or opposed application has commenced the parties shall obtain the leave of the court

(b) A Judge, or a Case Management Judge referred to in rule 37A or the court may at any stage before judgment direct the parties to consider referral of a dispute to mediation, whereupon the parties may agree to refer the dispute to mediation.

[7] Page 146 of the Indexed Bundle.

[8] THE SOUTH AFRICAN POLICE SERVICE DISCIPLINE REGULATIONS are indexed as follows: 1. Definitions, 2. Scope of the Regulations, 3. Purpose, 4. Principles, 5. Nature of misconduct, 6. Disciplinary officers, 7. Less serious misconduct, 8. Serious misconduct, 9. Expeditious Process, 10. Suspension, 11. Conducting the disciplinary hearing, 12. Sanctions, 13. Dispute resolution, 14. Procedure after a finding of misconduct, 15. Securing the attendance of an employee at a disciplinary hearing, 16. Witnesses at disciplinary hearings, 17. Conduct sheets, 18. Transitional arrangements.

[9] 2. Scope of the Regulations. — (1) Based on the agreement reached between the employer and all the unions admitted to the SSSBC, these Regulations apply to the employer and all its employees falling within the registered scope of the said Council. (2) These Regulations apply to members of the Senior Management Service of the Service, excluding the National Commissioner and Provincial Commissioners.

[10] 3. Purpose. — The purpose with these Regulations is to — (a) support constructive labour relations in the Service; (b) promote mutual respect between employees and between employees and the Employer; (c) ensure that supervisors and employees share a common understanding of misconduct and discipline to — (i) promote acceptable conduct in terms of the provisions of these Regulations; (ii) provide a user-friendly framework in the application of discipline; and (iii) prevent possible arbitrary actions by supervisors towards employees in the event of misconduct.

[10] 3. Purpose. — The purpose with these Regulations is to — (a) support constructive labour relations in the Service;

(b) promote mutual respect between employees and between employees and the Employer; (c) ensure that supervisors and employees share a common understanding of misconduct and discipline to — (i) promote acceptable conduct in terms of the provisions of these Regulations; (ii) provide a user-friendly framework in the application of discipline; and (iii) prevent possible arbitrary actions by supervisors towards employees in the event of misconduct.

[11] At page 79 of the Bundle. In terms of section 158 of the LRA the Labour Court may make any appropriate order, including the grant of urgent interim relief, an interdict, an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of this Act, a declaratory order, an award of compensation in any circumstances contemplated in this Act, an award of damages in any circumstances contemplated in this Act and an order for costs.

[12] Also see Grogan, J, Pandora's box - the Con Court's take on Chirwa, Journal Title: Employment Law: (2009) 25 (6) EL 4 and Maswazi, B, The High Court still has jurisdiction in labour matters: De Rebus in 2019 (May) DR 16.

[13] Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Skweyiya J, Van Der Westhuizen J and Yacoob J.

[14] 2021: F van Jaarsveld, A Bakker, L Dekker, R le Roux, M Olivier, C Prinsloo, N Smit, Principles and Practise of Labour Law, Updated: May 2021 - Issue 40, https://www.mylexisnexis.co.za/Index.aspx on 7 July 2021 at C Meaning, Nature and Purpose of Labour Law.

[15] See paragraph [17] in Lebohang John Mahoko v Mangaung Metropolitan Municipality, Case number 1692/2014, Free State Division of the High Court on 21 January 2016, Judgment by Naidoo, J.

[16]

Page 18 of the Bundle at paragraph 22 of the Founding Affidavit.

[17] 2012: Yeukai Mupangavanhu & Brighton M Mupangavanhu, Gcaba v The Minister for Safety and Security: Concurrent jurisdiction now settled law? [Discussion of Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC)], Journals Collection, Juta's/Stellenbosch Law Review (2000 to date)/Stellenbosch Law Review / Regstydskrif/2012: Volume 23/Part 1: 1 ­ 188/Articles \Artikels/Gcaba v The Minister for Safety and Security: Concurrent jurisdiction now settled law? [Discussion of Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC)], URL: http://jutastat.juta.co.za/nxt/gateway.dll/jelj/stelllr/3/381/382/384/388?f=templates$fn=default.htm.

[18] Supra at footnote 4.

[19] Also see Kriel v Legal Aid Board (2009) 30 ILJ 1735 (SCA).

[20] 2020 JDR 2618 (CC).

[21] Constitution of the Republic of South Africa, 108 of 1996.

[22] Ibid par 22.

[23] Ibid par 22.

[24] Ibid par 23.

[25] Ibid par 23.

[26] Ibid par 24 [27] Unfair Labour Practice is defined in section 186(2) of the LRA as follows: ‘Means any unfair act or omission that arises between an employer and an employee involving- (a) unfair conduct by the employer relating to the promotion demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.’ [28] Ibid par 33; Also refer: Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC), par 75- “In the event of the court’s jurisdiction being challenged … the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant seeks to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognizable only in another court. If, however, the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction. [29] Ibid par 38 and 39.

[26] Ibid par 24

[27] Unfair Labour Practice is defined in section 186(2) of the LRA as follows:

‘Means any unfair act or omission that arises between an employer and an employee involving-

(a) unfair conduct by the employer relating to the promotion demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;

(c) a failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement; and

(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.’

[28] Ibid par 33; Also refer: Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC), par 75- “In the event of the court’s jurisdiction being challenged … the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant seeks to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognizable only in another court. If, however, the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction.

[29] Ibid par 38 and 39.

[30] Ibid par 40.

[31] Ibid par 42

[32] Ibid par 43

[33] Founding Affidavit, p. 13, par 13.

[34] “(1) A supervisor must ensure that the investigation into the allegations of misconduct is completed within thirty (30) calendar days or as soon as practically possible thereafter, and if satisfied that the alleged misconduct is of a serious nature and justifies the holding of a disciplinary hearing, refer the outcome of the investigation to the employer representative within seven (7) working days to initiate a disciplinary enquiry. The employee must be informed of the alleged misconduct and pending investigation.”

[35] ‘(2) The employer representative must within fifteen (15) working days, charge the employee with misconduct, by serving a written notice to attend the disciplinary hearing in the form determined by the National Commissioner.’

[36] ‘(4)(a) The notice to appear at the hearing must be served on the employee at least ten (10) calendar days before the date of the hearing. (b) The notice must be served by delivering a copy thereof to the employee referred to therein or, if he or she cannot be found, by delivering it at his or her residence or place of employment to a person who is apparently over the age of 16 years and is apparently residing or employed there. (c) A return of service of a notice by the employee serving the notice to the effect that it took place as mentioned in sub regulation (b) may be handed in at the hearing and shall on its mere production be proof of the service thereof. (d) An employee is obliged to accept delivery of any notice served on him or her.’

[36] ‘(4)(a) The notice to appear at the hearing must be served on the employee at least ten (10) calendar days before the date of the hearing.

(b) The notice must be served by delivering a copy thereof to the employee referred to therein or, if he or she cannot be found, by delivering it at his or her residence or place of employment to a person who is apparently over the age of 16 years and is apparently residing or employed there.

(c) A return of service of a notice by the employee serving the notice to the effect that it took place as mentioned in sub regulation (b) may be handed in at the hearing and shall on its mere production be proof of the service thereof.

(d) An employee is obliged to accept delivery of any notice served on him or her.’

[37] (2) In applying regulation 5(3), the employer must assess the seriousness of the alleged misconduct after considering- (a) the actual or potential impact of the alleged misconduct on the work or the image of the Service station unit or component of the employee, and his or her colleagues; (b) the nature of the work and responsibilities of the employee; and (c) he circumstances in which the alleged misconduct took place.’

[37] (2) In applying regulation 5(3), the employer must assess the seriousness of the alleged misconduct after considering-

(a) the actual or potential impact of the alleged misconduct on the work or the image of the Service station unit or component of the employee, and his or her colleagues;

(b) the nature of the work and responsibilities of the employee; and

(c) he circumstances in which the alleged misconduct took place.’

[38] Regulation 5(2).

[39] Regulation 8(2).

[40] Regulation 8(3).

[41] Regulation 8(4)(a).

[42] Refer: Jako-Wutu v Ntabankulu Local Municipality [2016] ZALCPE 1 (16 February 2016), par 27.

[43] 2016 (3) SA 251 (CC) par 136; also see par 106 to 109.

[44] [2021] ZALCJHB 72 (31 May 2021).

[45] Also refer: Mndebele v Govan Mbeki Municipality and others, unreported judgment delivered on 22 March 2021 in the Mpumalanga Division under case number 775/2021, par 48 to 52.

[46] S v Smith 2012 (1) SACR 567 (SCA) at [7].

[47] See Proclamation R. 36 of 2013 dated 22 August 2013 (Government Gazette 36774).

[48] K2011148986 (South Africa) (Pty) Ltd v State Information Technology Agency (SOC) Ltd 2021 JDR 0273 (FB).