Tlhakudi v President of South Africa Mr Matamela Cyril Ramaphosa and Others (J 1220/2022) [2022] ZALCJHB 277 (12 October 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1220/2022

In the matter between:

KGATHATSO TLHAKUDI

Applicant

And

THE PRESIDENT OF THE REPUBLIC

OF SOUTH AFRICA

First Respondent

MR MATAMELA CYRIL RAMAPHOSA

THE MINISTER OF JUSTICE AND CORRECTIONAL

SERVICES: MR RONALD LAMOLA

Second Respondent

THE MINISTER OF PUBLIC ENTERPRISES

MR PRAVIN JAMNADAS GORHDAN

Third Respondent

DEPARTMENT OF PUBLIC ENTERPRISES

Fourth Respondent

ADV. RATHAGA RAMAWELE SC N.O.

Fifth Respondent

Heard: 11 October 2022

Delivered: 12 October 2022

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 12 October 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant is employed as the director-general of the fourth respondent, the department of public enterprises (the department).

[2] On 25 May 2022, Gobodo Forensic and Investigative Accounting (Pty) Ltd (Gobodo) issued a report on a case of alleged corruption reported to the Public Service Commission through the national anti-corruption hotline. The report was addressed to the third respondent (minister Gordhan) and recommended that disciplinary action be instituted against the applicant for a failure to comply with certain public service regulations and departmental policy in relation to the appointment of a candidate to a vacant post in the department. In essence, the report concluded that the applicant’s conduct constituted nepotism.

[3] On 6 June 2022, minister Gordhan wrote to the applicant advising him that the Gobodo report had been presented to him, and that he had submitted the report to the presidency. The letter advised the applicant that a minister would be identified to take the process further and that in the interim, he remained on special leave until the matter was resolved.

[4] On 14 June 2022, the director-general and secretary of the cabinet wrote to the applicant advising him that the first respondent (the President) had delegated the second respondent (minister Lamola) to deal with the matter. This was confirmed by minister Gordhan in a letter addressed to the applicant on 15 June 2022.

[5] On 21 June 2022, the President wrote a letter to minister Lamola, delegating to him the powers to initiate disciplinary processes against the applicant, and if necessary, to place him on precautionary suspension.

[6] On 23 June 2022, minister Lamola wrote to the applicant and advised him that he had been delegated by the President to initiate disciplinary processes, and if necessary, to place him on precautionary suspension. The letter further advised that the applicant’s continued presence at the workplace may jeopardise the integrity of the hearings and that he was to be suspended, with full emoluments, pending the finalisation of a disciplinary hearing.

[7] The decision to suspend was taken in terms of Chapter 7 of the SMS Handbook. Chapter 7 of the SMS Handbook applies to senior public sector employees (such as the applicant) and makes provision for precautionary suspension pending a disciplinary hearing for a period of 60 days. Clause (2) (a) provides that an employee may be placed on precautionary suspension, on full pay, in defined circumstances. Sub paragraph (c) provides that after the lapse of 60 days, the ‘chair of the hearing must then decide on any further postponement.’ The applicant acknowledged receipt of the letter on 24 June 2022.

[8] On 12 August 2022, minister Lamola addressed a charge sheet to the applicant, advising him that a disciplinary hearing would be held on 22 August 2022. The charge sheet contains eight charges of misconduct, all relating to interference with the recruitment process for the position of director: security and facilities and the applicant’s conduct in relation to the person who was alleged to be his preferred candidate, Ms. Tladi.

[9] On 22 August 2022, a hearing was convened before an independent chairperson, the fourth respondent (Adv Ramawele SC). The proceedings did not progress much beyond a discussion on the exchange of documents.

[10] On 26 August 2022, Adv Ramawele SC issued a written ruling in which he recorded that during the proceedings that took place on 22 August 2022, the parties had agreed on how bundles of documents would be exchange between themselves, and that the inquiry was postponed to 29 and 30 September 2022, and further to 27 and 28 October 2022.

[11] On 27 August 2022, the applicant sought in a written application, addressed to Adv Ramawele SC, for a referral of the proceedings to an inquiry in terms of section 188A of the Labour Relations Act (LRA). That section contemplates, amongst other things, for allegations of misconduct brought against an employee to be referred to an arbitration hearing.

[12] On 22 September 2022, the applicant’s attorneys inquired from the office of the state attorney (representing the first to fourth respondents) as to whether he should resume his duties. The response was that he should not, and that he was to pursued whatever remedies were at his disposal.

[13] The present application was filed on 28 September 2022.

[14] The relief sought by the applicant in the notice of motion is far-reaching. First, the applicant seeks to have the application heard as a matter of urgency. The applicant further seeks orders that his continued suspension be declared unlawful and unconstitutional, that his continued suspension has lapsed or is deemed to have lapsed by operation of law, that the first to the fifth respondent’s, either individually or collectively, have no authority or power to extend his suspension, that his suspension be uplifted fourth with, that any continued attempt to extend or resuscitate his suspension is ultra vires, unconstitutionally invalid and unlawful, that the first to fifth respondents have no authority to lawfully exercise any powers to extend the expired suspension, and that the respondents be interdicted from doing so.

[15] The first to fourth respondents contend that this court has no jurisdiction to entertain the claim and that in any event, it is not urgent. They also dispute that the applicant has met the requirements for the final interdict that he seeks. The issues to be decided are thus:

a. whether the court has jurisdiction;

b. whether the application is urgent;

c. whether the applicant has met the threshold for a final order to the effect that his continued suspension is unlawful.

[16] I deal first with the issue of jurisdiction. Section 157 of the LRA provides that it has exclusive jurisdiction in respect of all matters that in terms of the LRA or any other law are to be determined by the court. Section 157 (2) provides that the court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution where that violation arises from employment or labour relations, or any dispute over the constitutionality of any executive or administrative act or conduct by the state in its capacity as an employer, or the application of any law for the administration of which the Minister of Labour is responsible.

[17] Jurisdiction is to be determined on the basis of the pleadings (see Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC)). For the purposes of this determination, the substantive merits of the claim are not relevant. The court must assess the pleadings (in this case, the notice of motion and the supporting affidavits) in order to establish the legal basis for the applicant’s claim.

[18] The applicant submits that this court has jurisdiction to entertain his claim on the basis of section 157(2) of the LRA. He submits that he has an election to refer an unfair labour practice complaint to the bargaining council should he choose to challenge the unfairness of his continued suspension or, as he has elected, to challenge the unlawfulness of his continued suspension.

[19] The applicant’s challenge variously appeals to section 1(c) and 2 of the Constitution (in which the values of constitutional supremacy and the rule of law is established) and also appeals to sections 9 (equality), 10 (human dignity), 22 (freedom of trade, occupation and profession) and 34 (access to courts) of the Constitution, which he contends find application in the current matter. Curiously, the applicant makes no reference to section 23 (labour rights).

[20] The respondents contend that it is not open to the applicant to approach this court on the basis of what he alleges to be unlawful conduct on the part of the respondents, since this court has no jurisdiction to make a determination of unlawfulness (relying on Steenkamp v Edcon Ltd 2016 (3) SA 251 (CC), and subsequent decisions by this court in Botes v City of Johannesburg (2021) 42 ILJ 530 (LC), and Shezi v SAPS (2021) 42 ILJ 184 (LC)).

[21] The decisions on which the respondents rely can be distinguished on the basis that in none of them was there an appeal to a fundamental right established by Chapter 2 of the Constitution and reliance on section 157 (2) to establish jurisdiction. I do not understand Steenkamp to hold that this court never has jurisdiction in respect of a claim of unlawfulness. What the judgment establishes is that generally speaking, this court is concerned with matters in which unfair (as opposed to unlawful) conduct is impugned, but that the court may be required to engage with conduct that is alleged to be unlawful at least in the sense that it may constitute a breach of contract (where court exercises jurisdiction under section 77 (3) of the Basic Conditions of Employment Act), or where the court

entertains an application for review brought in terms of section 158 (1) (h), on the basis of the principle of legality. What is necessary is that jurisdiction be established by reference to section 157 (1) and (2).

[22] In the present instance, the application is brought squarely within the terms of section 157 (2). The applicant contends that the respondents have violated a fundamental right entrenched in chapter 2 of the Constitution that arises from employment and labor relations, and also from an executive or administrative act by the state in its capacity as an employer. As I have indicated, the substantive merit of the applicant’s contention is not relevant at this stage but

I am satisfied that for the purposes of establishing jurisdiction, the notice of motion and founding affidavit discloses a claim that is justiciable by this court in terms of section 157 (2) of the LRA.

[23] The next question that arises is that of urgency. The applicant contends that the application is urgent because the continued suspension of any public-sector employee beyond the 60-day period contemplated by the SMS handbook is unlawful and unconstitutional. The applicant avers that he was initially suspended on 17 June 2022. On the applicant’s computation, at the first sitting of the disciplinary hearing on 22 August 2022, his suspension had already lapsed by more than a week. This much was acknowledged by the applicant’s representative in the course of the proceedings. In spite of this, the applicant took another five weeks to file the present application. The applicant relies on what he contends to be a denial of his right to return to work on 22 September 2022. On that date, the applicant’s attorney addressed a letter to the state

attorney about is return to work. The response, sent on the same date, disputed that the applicant was entitled to return to work and recorded that he was at liberty to pursue any remedies available to him.

[24] The transcription of the disciplinary hearing that commenced on 22 August 2022 make clear that the applicant’s counsel was fully aware that on the applicant’s version, his suspension had lapsed. The following extract from the record confirms as much:

MR KUFA: His suspension lapsed last week Tuesday.

CHAIRPERSON: Okay?

MR KUFA: The 60 days.

CHAIRPESRON: Okay.

MR KUFA: Sixty days’ suspension lapsed last week, so now the employer is unlawfully preventing the employee from resuming his duties.

[25] The applicant has clearly not sought to protect his interests with the degree of urgency that he might have displayed. It was only on 22 September 2022 that the applicant’s attorneys raised with the state attorney the issue of the lapsing of his suspension, and inquired about his return to work. The applicant has not satisfactorily explained why he took no steps between 22 August 2022 and 22 September 2022, when he addressed the letter to the state attorney inquiring about his return to work. Counsel submitted that the referral to arbitration in terms of section 188A that the applicant had sought to make and which he continued to pursue during this period was relevant to the issue of suspension. I fail to appreciate how this can be so - the matter of the applicant’s suspension was not integral to or in any way concerned with his suspension validity of his continued suspension beyond the expiry of the 60-day period.

[26] That notwithstanding, the principles applicable to the determination of urgency account for the applicant’s prospect of obtaining relief in the ordinary course. Despite my misgivings about the degree of diligence with which the applicant pursued his interests in relation to what he considers to be the unlawfulness of his continued suspension, there is little prospect of the applicant obtaining relief in the ordinary course and if only for that reason, I am prepared to regard the application as urgent.

[27] The applicant seeks a final order. The essential requirements for a final interdict are usually stated as a clear right; an injury actually committed or reasonably apprehended; and the lack of an adequate alternative remedy available to the applicant (see Commercial Stevedoring Agricultural & Allied Workers Union & Others v Oak Valley Estates (Pty) Ltd & another (2022) 43 ILJ 1241 (CC)).

[28] The parties are agreed that the applicant’s suspension lapsed 60 days after he was given notice of suspension in terms of the correspondence addressed to him by minister Lamola on 23 June 2022. What the applicant contends is that the continuation of his suspension is unlawful. In support of the clear right to which the applicant lays claim, counsel confirmed during argument that the applicant’s appeal was to fundamental rights contained in Chapter 2 of the Constitution. When pressed for further particularity, counsel submitted that the applicant’s continued suspension is a breach of section 22 of the Constitution, which provides that every citizen has the right to choose their trade, occupation and profession freely. Counsel made a further but less enthusiastic appeal to other fundamental rights, including the right to equality and the right to human dignity, all of which appear ancillary to the appeal to section 22. Again, there was no explanation forthcoming for the fact that no reliance was placed on section 23, which specifically includes the right to fair labour practices as a fundamental right.

[29] In Chirwa v Transnet Ltd and Others [2007] ZACC 23; 2008 (4) SA 367 (CC), the Constitutional Court noted at paragraph 123 of the judgment, that the application of section 157 (2) must be confined to those instances (if any) where a party relies directly on the provisions of the Bill of Rights, ‘… Subject to the constitutional principle that we have recently reinstated, namely, that ‘where legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging that legislation is falling short of the constitutional standard’ (referring to SA National Defence union v Minister of Defence & others 2007 (5) SA 400 (CC)). The court went on to say at paragraph 124 of the judgment:

…The employee cannot, as the applicant seeks to do, avoid the dispute resolution mechanisms provided for in the LRA by alleging a violation of a constitutional right in the Bill of Rights. It could not have been the intention of the legislature to allow an employee to raise what is essentially a labour dispute under the other LRA as a constitutional issue under the provisions of s 157 (2). To hold otherwise would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute resolution provisions of the LRA. This would inevitably give rise to forum shopping simply because it is convenient to do so or as the applicant alleges, convenient in this case ‘for practical considerations’. What is in essence a labour dispute as envisaged in the LRA should not be labeled a violation of a constitutional right in the Bill of Rights simply because the issues raised could also support a conclusion that the conduct of the employer amounts to a violation of the right entrenched in the Constitution.

See also Minister of Health v New Clicks SA (Pty) Ltd and others (Treatment Action Campaign as amicus curiae 2006 (2) SA 311 (CC) and SA National Defence Union v Minister of Defence & others [2007] 9 BLLR 785 (CC) at paragraphs 50-51; see also NAPTOSA and others v Minister of Education, Western Cape, and others 2001 (2) SA 112 (C); De Klerk v Cape Town Union Mart International (Pty) Ltd (2012) 33 ILJ 2887 (LC); and Safcor Freight (Pty) Ltd t/a Safcor Panalpina v SA Freight and Dock Workers [2012] 12 BLLR 1267 (LAC), where Murphy AJA said the following, at paragraph 18 of the judgment:

‘In my view, the Labour Court erred in declaring the award of increased remuneration inconsistent with section 9 (equality) and section 23 (fair labour practices) of the Constitution. Where legislation has been enacted to give effect to a constitutional right, a party may not bypass that legislation and rely directly on … the general provisions of constitutional right to fair labour practices in section 23 or the equality clause in section 9 of the Constitution.’

[30] In the present instance, despite the applicant’s broad-based appeal to the rule of law and the more specific to section 22 of the Constitution, stripped to its essentials, his claim is one of a breach of the right to fair labour practices established by section 23 (1) of the Constitution. The LRA gives expression to this right in section 186 (1), where it defines an unfair labour practice. Indeed, that definition extends specifically to the unfair suspension of an employee (see section 186 (1)(b)). In accordance with the principle established by Chirwa, the applicant is not permitted, as he seeks to do, to bypass the LRA by appealing to a fundamental right. For this reason, the applicant has failed to establish a clear right to the relief that he seeks, and the application stands to be dismissed.

[31] In any event, the applicant has another adequate remedy. The principles regulating the granting of final interdicts require that the alternative remedy must be a legal remedy, adequate in the circumstances, and grant similar protection (see Hotz v University of Cape Town 2017 (2) SA 485 (SCA)). The applicant is fully entitled to invoke the dispute resolution structure established by the LRA by referring an unfair labour dispute to the bargaining council. Section 193 (4) of the LRA empowers an arbitrator to determine the dispute on any terms deemed reasonable, including the ordering of reinstatement, re-employment or compensation. To the extent that the applicant contends that his claim would be constrained by considerations of fairness (as opposed to the claim of unlawfulness the applicant pursues in these proceedings), the distinction between lawfulness and fairness in the context of a consideration of the adequacy of the alternative remedy that an unfair labour practice referral presents is less Manichean, and the ‘election’ that the applicant assumes is questionable. It remains open to the applicant to contend that a continued suspension that does not comply with Regulation 7 is an unfair labour practice because the prescribed period has lapsed, and to seek the same remedy that he seeks in these proceedings.

[32] Finally, in relation to costs, section 162 of the LRA affords the court a discretion to make orders for costs according to the requirements of the law and fairness. This formulation has the consequence that costs do not ordinarily follow the result – the result is not irrelevant, but the court must take into account competing considerations, particularly those that bear on access to justice, and in particular, access to this court by aggrieved employees for whom the spectre of an adverse order for costs might disincline them to pursue the remedies that the LRA affords.

[33] In the present instance, all of the respondents who have opposed the application seek costs; the third respondent seeks costs on a punitive scale. They do so on the basis of what they contend to be the ad hominem attack in which the applicant has engaged, unbefitting an employee of his seniority casting aspersions as he has on the respondents and their legal representatives.

[34] The applicant’s attack, particularly that on minister Gordhan, by and large comprises strong and unsubstantiated allegations. For example, the applicant adverse that minister Gordhan is brazenly intent to destroy his career, that he is abusing his powers and that he was acting in a fraudulent and corrupt manner, and that with minister Lamola, he has been ‘a large and careless in using the public purse for the personal ends and unlawful gains’. Concerning the president, the applicant avers ‘The First Citizen seems to see himself as above the law and it is high noon that this Court examines his views and place them on the constitutional Richter scale - no one is above the law’. Concerning the president, minister Lamola and minister Gordhan, the applicant avers ‘They are raised as a cesspool of malicious efforts by the respondents to “kick the can down the street” and deny this court jurisdiction to entertain my urgent application and unlawful suspension’.

[35] The applicant’s attorney wrote to the state attorney on 5 October 2022 stating that the applicant took exception to the late filing of the answering affidavits, and that he intended seeking costs orders de bonis propriis against counsel in the matter. One must assume that the letter was written on the instructions of the applicant, or with his acquiescence. Paragraph 7 of the letter reads as follows:

We now turn to deal with the issue of costs – our client is of the firm view that no counsel worth their salt should be milling around and deposing this application – hence we will at the hearing of the matter argue that any counsel who unnecessarily joined cohort with any of the respondents shall be mulcted with costs de bonis propriis personally.

This is nothing less than an attempt to intimidate the legal representatives of the respondents. Counsel should be afforded the right to advise clients, in full freedom, subject only to the law and the professional ethics that bind them. The applicant’s attitude is an egregious and regrettable attack on that freedom.

[36] To the extent that the applicant contends that the present proceedings raise a constitutional issue and that it is a matter of sufficient public interest not to attract an order for costs against him, it is clear from the papers that the matter is patently animated by self-interest and little else. The applicant has acted in a manner unbefitting the seniority of his position and has sought to use the platform established by the application to raise matters in respect of the department that are not relevant to the relief he seeks, which in turn has necessitated the respondents having to deal with irrelevant factual material.

[37] In these circumstances, the requirements of the law and fairness are best satisfied by the applicant being ordered to pay the costs of the application. The second respondent was represented by senior and junior counsel but in fairness, the order for costs should appropriately to be limited to the costs of one counsel in respect of each of the respondents who opposed the application.

I make the following order:

The application is dismissed, with costs, such costs to exclude the cost of senior counsel where so employed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

M Kufa

Instructed by:

Maluleke Siriti Makume Matlala Inc.

For the first respondent:

S Kazee

Instructed by:

State Attorney

For the second respondent: M Sello SC and R Nthambeleni

Instructed by:

State Attorney

For the third and

fourth respondent:

T Govender

Instructed by:

State Attorney