Simelane v Independent Electoral Commission and Others (J863/23) [2023] ZALCJHB 200 (3 July 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: J863/23

In the matter between:

SIMELANE

KNOX VICTOR LUKE Applicant And

INDEPENDENT

ELECTORAL COMMISSION First Respondent

CHAIRPERSON

OF THE INDEPENDENT ELECTORAL COMMISSION Second Respondent

CHIEF EXECUTIVE

OFFICER OF THE INDEPENDENT ELECTORAL COMMISSION Third Respondent

Heard: 28 June 2023

Delivered: 03 July 2023

Summary: Urgent application – declaratory order in terms of section 158(1)(a)(iv) of the LRA – res judicata alternatively unreasonable delay in instituting disciplinary action.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] The applicant (Mr Simelane) approached court by way of urgency seeking an order declaring the charges levelled against him, which serve before the pending disciplinary enquiry, deals with matters that are res judicata between the parties; alternatively, that the respondents unreasonable delayed instituting the disciplinary enquiry. The declaratory order is sought in terms of section 158(1)(a)(iv) of the Labour Relations Act[1] (LRA).

[2] The essence of the Mr Simelane’s case, it would seem, is that the declaratory order would in uphold the defence of res judicata and debar the respondents from proceeding with the disciplinary enquiry. Likewise, if the court is not with him on res judicata, then the disciplinary enquiry should be debarred due to unreasonable delay.

[3] The application was opposed by the respondents who, in limine, impugns urgency.

Pertinent facts

[4] There is not much controversy when to comes to the factual matrix. On 5 May 2003, Mr Simelane was charged with sexual harassment and abuse of his authority. The charges stemmed from the complaint that was laid by Ms Elsi Dlamini (Ms Dlamini) that on 4 July 2001 Mr Simelane made unwelcome sexual advances which included a comment that he wanted to sleep with her but she resisted him. Ms Dlamini also complained about the ill-treatment she was subjected to by Mr Simelane subsequently and up until she laid a complaint in 2003.

[5] Mr Simelane was an Assistant Manager: Electoral Matters, Mpumalanga Province. at the time. While Ms Dlamini was an Electoral Projects Coordinator for Ligwa Municipality in Mpumalanga and was reporting to Mr Simelane.

[6] Mr Simelane was found guilty and with issued a final written warning that was valid for 12 months. He accepted the verdict and the sanction.

[7] In December 2022, the first respondent, the Independent Electoral Commission (IEC) received a complaint on behalf of Ms Dlamini from an advocacy group that called Le Joy alleging that Ms Dlamini had been subjected to sexual violence by the various senior staff members that she had been reporting to, including Mr Simelane. It was alleged that Mr Simelane raped Ms Dlamini on 4 July 2001.

[8] The IEC conducted investigation on the allegations which culminated in taking disciplinary action against Mr Simelane. He was served with the charge sheet dated 11 June 2023 containing new charges of, inter alia, rape or sexual assault being preferred against Mr Simelane based on the events of 4 July 2001. The disciplinary enquiry convened on 22 June 2023 and was postponed to 29 June 2023.

Urgency

[9] I deal first with the issue of urgency which I reckon is dispositive of the matter. The applicable legal principles are succinctly outlined in Maphalle v National Heritage Council and others[2] as follows:

‘[17] Urgent applications are governed by rule 8. In considering rule 8, the court in Jiba v Minister: Department of Justice & Constitutional Development & others,[3] said:

“Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules.”

[18] Another important consideration to be applied when deciding whether a matter is urgent, is the determination of whether an applicant would not be afforded substantial redress in due course, and the duty is on the applicant to provide proper reasons in support of such a case. As succinctly described by the court in Maqubela v SA Graduates Development Association & others:[4]

“Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary.”

[19] Because the applicant in casu is actually seeking final relief on an urgent basis, the court must be even more circumspect when deciding whether or not urgency has been established. In Tshwaedi v Greater Louis Trichardt Transitional Council[5] the court said:

“An applicant who comes to court on an urgent basis for final relief bears an even greater burden to establish his right to urgent relief than an applicant who comes to court for interim relief.”’

[10] Turning the matter at hand, despite the onerous onus to establish urgency since Mr Simelane is seeking a final relief, he presented a scanty explanation which is quintessentially a bald averment that he will suffer irreparable harm. Curiously, he does not make pertinent averments in his founding affidavit on the nature of the irreparable harm he will suffer. Yet, I am expected to find in his favour on the basis of the conjectural submissions made by his counsel, Mr Zwane, that he stands to lose his remuneration, property, and or quality of life.

[11] In any event, even if I were to accept that there is a likelihood that Mr Simelane may suffer financial hardship if he were to be dismissed, it is trite that loss of remuneration and related economic hardship do not establish urgency.[6]

[12] Faced with the obvious insurmountable impediment, Mr Zwane fervently submitted that the court should accept that the urgency of this matter rest on the nub of this case which is the proverbial excavation the grave of charges which were decided over 20 years ago, conduct that is tantamount to abuse of power and authority by the respondents. As such, Mr Simelane will not be afforded substantial redress at the hearing in due cause, even if the chairperson rule in his favour or he ultimate wins at the CCMA, so the argument further went.

[13] I deem it expedient that I should briefly scrutinise the essence of Mr Simelane’s case. He seeks a declaratory order that the charges he is facing are res judicata and/or vitiated by unreasonable delay.

[14] In BMW (SA) (Pty) Ltd v Van der Walt,[7] confronted with similar circumstances, the Labour Appeal Court (LAC), in a judgment penned by Conradie JA, stated that:

‘Whether or not a second disciplinary enquiry may be opened against an employee would, I consider, depend upon whether it is, in all the circumstances, fair to do so. I agree with the dicta in Amalgamated Engineering Union of SA & others v Carlton Paper of SA (Pty) Ltd (1988) 9 ILJ 588 (IC) at 596A-D that it is unnecessary to ask oneself whether the principles of autrefois acquit or res iudicata ought to be imported into labour law. They are public policy rules. The advantage of finality in criminal and civil proceedings is thought to outweigh the harm which may in individual cases be caused by the application of the rule. In labour law fairness and fairness alone is the yardstick…” (Own Emphasis)

[15] The principle articulated in BWW was endorsed in the subsequent decisions of the LAC. In the majority judgment of the LAC penned by Jafta AJA, as he then was, in Branford v Metrorail Services (Durban) & others[8] it was held that the employer is entitled to hold a second disciplinary enquiry if it would be fair to do so and not because there exist exceptional circumstances.

[16] Recently, in Myers v National Commissioner of the SA Police Service & another[9], the LCA, per Coppin JA, opined that there is merit in a notion that the estoppel principle possibly does not apply in the Commission for Conciliation Mediation and Arbitration

(CCMA) or bargaining council proceedings because those tribunals are not courts of law and because fairness, which is also the basis for the relaxation of the strict requirements of res judicata, is in any event, paramount in such proceedings. Similarly, by parity of reasoning, the same consideration find application in the internal disciplinary enquiries.

[17] Turning to the issue of 20 years’ delay in charging Mr Simelane, it my view the consideration should equally be within the context of fairness. Ms Baloyi SC, counsel for the respondents, correctly submitted that Mr Simelane’s assertion that the charges levelled against him are motivated by the abuse of authority and power is devoid of merit. While it is accepted the extent of the delay is a serious consideration, the IEC is enjoined by its own Disciplinary Code and Procedures to investigate serious allegations and to constitute a disciplinary

hearing as it did in this instance.

[18] Lastly, it is trite that it is incongruous for a litigant to seek a declaratory relief in motion proceedings on an urgent basis when there are alternative remedies.[10] Therefore, it does not avail Mr Simelane to seek a final declaratory order on common law grounds on issues that ought to be determined on the basis of fairness in terms of the dispute resolution machinery of the LRA. I concur with Ms Baloyi SC’s

submission that it is not Mr Simelane’s case that the remedies availed by the LRA are inadequate or there are special circumstances that warrant that he must not be required to invoke these remedies.

[19] In all the circumstances, Mr Simelane has failed to make out a case of urgency as he has adequate alternative remedies through which he can obtain substantial redress in the ordinary course. Accordingly, this application falls to be struck off the roll.

Costs

[20] It is well accepted that costs do not follow the result in this Court. I am not inclined to burden Mr Simelane, an individual litigant, with costs as it would offend the principles of law and fairness.

[21] I, accordingly, make the following order:

Order

1. This application is struck off the roll for lack of urgency.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate L Zwane

Instructed by: WL Nkosi Attorneys

For the Respondents: Advocate MS Baloyi SC

Instructed by: Phatshoane Henney attorneys

[1] Act 66 of 1995, as amended.

[2] (2023) 44 ILJ 579 (LC) at paras 17 – 19.

[3] (2010) 31 ILJ 112 (LC) at para 18.

[4] (2014) 35 ILJ 2479 (LC) at para 32. See also Transport & Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd & others (2015) 36 ILJ 2148 (LC) at para 11.

[5] [2000] 4 BLLR 469 (LC) at para 11. See also Minah v Elias Motswaledi Local Municipality [2019] 5 BLLR 481 (LC) at para 26.

[6] See: De Beer v Minister of Safety & Security & another (2013) 34 ILJ 3083 (LAC) at para 32.

[7] (2000) 21 ILJ 113 (LAC) (BMW) at para 12.

[8] (2003) 24 ILJ 2269 (LAC) at paras 14-16.

[9] (2022) 43 ILJ 2469 (LAC) at paras 58 -59.

[10] See: Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC) at para 46.