University of Kwazulu-Natal v Goga and Others (AR 391/2007) [2008] ZAKZHC 34; (2008) 29 ILJ 2661 (N) (1 January 2008)

CASE NO AR 391/2007

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

In the matter between

THE UNIVERSITY OF KWAZULU-NATAL Appellant

(First Respondent in the Court a quo)

and

ISMAIL ESSOP GOGA First Respondent

(Applicant in the Court a quo)

PROFESSOR M. G. COWLING NO Second Respondent

(Second Respondent in the Court a quo)

PROFESSOR T. MOKOENA NO Third Respondent

(Third Respondent in the Court a quo)

MR L. MODISE NO Fourth Respondent

(Fourth Respondent in the Court a quo)

_________________________________________________

Delivered : APRIL 2008

J U D G M E N T

LEVINSOHN DJP :

[1] For ease of reference I shall refer to the parties to this appeal by their respective designations in the court a quo.

[2] On the 16 January 2007 the applicant commenced urgent application proceedings in the court a quo. The relief claimed was two-fold. Firstly a declaratory order in regard to the jurisdiction of a disciplinary tribunal which had been convened by the first respondent to deal with certain charges formulated against the applicant. Secondly a permanent stay of the prosecution arising from the charges in question. A rule nisi together with interim relief was issued in the first instance. On the extended return date the matter came before Morley AJ who confirmed the rule. With leave of the court a quo the first respondent appeals against that decision. The other respondents in the case did not participate in the appeal and abide the court’s decision.

[3] Before getting to grips with the issues that arise in the appeal it is necessary to briefly set out the relevant factual background which emerges from the respective affidavits.

[4] The applicant is a specialist orthopaedic surgeon. He avers that he is employed by the Provincial Government of kwaZulu-Natal (Department of Health)(“the Province”) as a principal orthopaedic specialist. He performs his duties at the Nkosi Albert Luthuli Central Hospital, Durban. He specifically alleges that he is not employed by the first respondent. He makes the case that in consequence of an agreement concluded between the Province and the first respondent certain employees of the Province render academic services to the first respondent. The applicant is one of these. According to the applicant it follows therefore that the first respondent does not have jurisdiction to discipline him for any alleged misconduct and more particularly where such conduct relates exclusively to the rendering of services as an employee of the Province.

[5] The applicant avers that on the 1 March 1978 he was employed by the Province as a medical officer. He has remained in continuous employment by the Province as a specialist orthopaedic surgeon and at present a principal specialist. His conditions of service are those stipulated by the Provincial authority. He renders medical services in Provincial hospitals exclusively for the benefit of the Provincial authority. Leave, sick leave, medical aid as well as a pension scheme are all regulated and determined by the Province. The applicant makes the point that he is not entitled to join in any pension scheme other than that of the Province.

[6] The applicant avers that he has never been in the employ of the first respondent nor has he received a salary from it.

[7] However the applicant acknowledges that he performs academic services for and on behalf of the first respondent. These, he avers, are performed in the context of a long-standing agreement which exists between the Province and the first respondent.

[8] This agreement has been annexed by the applicant. It was concluded some time in the 1950’s between the Natal Provincial Administration and the University of Natal. The preamble to the agreement sets forth clearly the basic intent of the parties thereto. I quote this in full :

“Whereas the University requires access to a hospital or hospitals and other medical institutions controlled and maintained by the Administration for the practical teaching and training of medical students of the University:

And whereas the Administration is prepared to provide such access subject to agreed conditions:

And whereas it is necessary for the parties hereto to make effective arrangements, mutually accepted; for the provision of such access; for the sharing of the services of personnel, accommodation, equipment and other facilities; for the sharing of the costs involved on a fair basis according to the services received by the respective parties; and for other matters incidental thereto:

And whereas it is expedient that a Joint Standing Advisory Committee be appointed to advise and assist both parties to this Agreement in the efficient carrying out of the said arrangements and that its composition and functions be defined:

And whereas it is expedient that a Joint Medical Staff be established by the parties hereto for the efficient practical teaching and training in medicine of medical students having access to the hospital or hospitals, and other medical institutions, and that the functions of the said

Joint Medical Staff be defined.”

(My emphasis)

The document then goes on to record an agreement in regard to access to the King Edward VIII Hospital and the pathological laboratory as well as any other hospitals which may be agreed from time to time. Clause II sets forth the composition of the Joint Standing Advisory Committee which consists of members of the Faculty of Medicine of the University of Natal and officers from the Province. One of the main functions of the Committee is to make recommendations for the filling of posts on the Joint Medical Staff. The concept of the Joint Medical Staff is set forth in Clause IV :

“The Joint Medical Staff shall consist of persons appointed after consideration of the recommendations of the Committee and Agreement by the parties :

By the University to posts as approved by the Minister of Education, Arts and Science, and to such other posts as to not require the approval of the Minister; and

By the Administration to posts approved by the Administration.”

Clause V defines the functions of the Joint Medical Staff :

“(i) Members of the Joint Medical Staff shall be required to serve jointly the Faculty of Medicine of the University and the hospitals and other medical institutions referred to in Clause 1;

Subject to the provisions of this Agreement, members of the Joint Medical Staff shall,

provide, with the assistance of staff employed by the Administration, services in all branches of medicine to patients at the hospitals and other medical institutions referred to in Clause 1;

provide teaching in all branches of medicine to students of the University;

assist in providing pathological services for the teaching hospitals existing at the date of coming into operation of this agreement and the associated teaching of students of the University;

undertake such medical research as can reasonably be combined with the other services, and

serve in a consultative advisory capacity, whenever so required, to the University in respect of any matters relating to the Medical School of the University and to the Administration in respect of any matters relating to provincial hospitals.”

[9] Clause VI of the Agreement under the heading “Administrative, Clinical and Academic control of Joint Medical Staff” provides as follows :

“The Administration, through the Director of Provincial Medical and Health Services, shall control the duties of the Joint Medical Staff in so far as the administrative and clinical work of the hospital and Provincial Pathological Laboratory service are concerned.

The University, through the Principal, shall control the academic duties of the said Staff.

CLAUSE VII – CONDITIONS OF SERVICE OF MEMBERS OF THE JOINT MEDICAL STAFF.

All appointments to the Joint Medical Staff shall be subject to the conditions of service for permanent members of the academic or non-academic staff of the University, as the case may be, or to the conditions of service for members of the Natal Provincial Hospitals Service, provided that the controlling authority for the implementation of the conditions of service of members of the Joint Medical Staff shall be the Council of the University or the Administration, as the case may be, after consultation through the Committee.”

[10] The disciplinary proceedings which were referred to at the beginning of this judgment were instituted against the applicant on the 29 November 2005. That disciplinary hearing was to take place in terms of the first respondent’s disciplinary code. The charge sheet which was annexed to the notice convening the disciplinary enquiry alleged that the applicant had committed two counts of misconduct which I quote in full hereunder :

“Count 1

Misconduct – Racism

You are charge with misconduct in that on or about April/May 2004 you unfairly discriminated against Dr M N Tlale by recruiting Dr Ramlakan into the post of a specialist without the post being advertised. Your conduct discriminated against Dr Tlale who would have been more suitable for the position had it been advertised given the fact that he had qualified six months before Dr Ramlakan.

Count 2

Misconduct – Unfair discrimination

You are charged with misconduct in that on or about 1998 in your capacity as Deputy Head of Department of Orthopaedic Surgery you unfairly discriminated against Dr Senoge by refusing him theatre slates.”

[11] The applicant avers that the allegations in the charge sheet relate to hospital administration issues, arising exclusively from the performance of his duties as an employee of the Province. They do not relate to academic issues or the rendering of services as a lecturer appointed to the Joint Medical Staff. The applicant goes on to aver that the complainant on Count 1 (Dr Tlale) as well as Dr Ramlakan, the person who was allegedly unduly favoured, were both employees of the Provincial authority and were not appointed on the Joint Medical Staff. Likewise Dr Senoge, the complainant on Count 2, was a full-time employee of the Province and was not on the Joint Medical Staff either.

[12] The applicant submits in the premises that the first respondent was not possessed of jurisdiction to discipline him in respect of the above-mentioned allegations.

[13] I turn now to summarise briefly the salient evidence adduced by the first respondent.

[14] The principal deponent on behalf of the first respondent was Professor Sturm. The deponent makes the point at the outset that the applicant is both an employee of the Province and of the first respondent. He avers that the applicant renders services to both the first respondent and the Province and one is not able to distinguish these as either services to the first respondent or to the Province. The deponent says that the applicant in his capacity as an associate professor teaches both students and qualified medical personnel who are registrars and are qualifying themselves as specialist orthopaedic surgeons.

[15] Significantly the deponent admits that the applicant’s conditions of service are governed by the Province and not by the first respondent. Notwithstanding this the allegation is made that the first respondent indeed possesses the right to discipline the applicant. That right being a necessary incident of the employer/employee relationship. The applicant is according to the deponent subject to the disciplinary provisions of the Labour Relations Act (LRA).

[16] The deponent makes the important averment that on the 10 June 1991 the applicant applied for a principal post with the first respondent in which he acknowledged that the post he applied for is an academic teaching post based at King Edward VIII Hospital in terms of the Joint Medical Scheme (the Scheme) established by the then Natal Provincial Administration (the Administration). The applicant applied for the position on condition that all his accumulated benefits would be transferred to the new post and that it did not in any way change the long leave granted to him on the 1 July 1991 to the 30 June 1992.

[17] While the deponent does not dispute that the applicant is remunerated by the Province, he points out that in addition to such remuneration an allowance is paid by the first respondent to the applicant.

[18] Professor Sturm goes on to admit that while the Joint Medical Scheme Agreement foreshadowed that a distinction be drawn between academic functions that are performed by the applicant, on the one hand and the applicant’s other duties performed on behalf of the Province on the other, it is impossible in practice to really distinguish between the two as there was a substantial overlap.

[19] The learned judge in the court a quo made the following essential findings :-

19.1 The applicant who is a member of the Joint Medical Staff and an Associate Professor of the University was an employee of the first respondent. The learned judge accepted the authorities which proclaim that an employee may serve more than one employer;

19.2 It followed from the above that the first respondent was entitled in appropriate circumstances to take disciplinary action against the applicant. The learned judge accepted Counsel’s submission that the provisions of the Labour Relations Act would govern any disciplinary actions which include dismissal;

19.3 The learned judge expressly disagreed with Professor Sturm’s contentions that it was not possible to draw a distinction between academic activities and the clinical functions which the applicant performs. He held that the appointment of a staff member to a post in the hospital was an administrative function and the fact that such an appointment might indirectly impact in some way on teaching that takes place in the academic hospital “did not of itself convert that non-academic function into an academic function. It was a Provincial Administration post and fell within the jurisdiction of the Administration”. The learned judge found it to be of significance that the person who was allegedly discriminated against was not appointed to a post on the Joint Medical Staff in terms of the Joint Medical Agreement;

19.4 The learned judge held that if the first respondent’s submissions were correct the applicant could be disciplined by it for any alleged misconduct no matter what function was being performed. In truth the applicant could be amenable to the discipline of both the University and the Province in respect of the same allegations of misconduct. The learned judge then made a telling point in my opinion that “the first respondent would indirectly exercise a large measure of control over the administration of the hospital as well as in clinical matters for which it was not directly responsible”;

19.5 The same considerations apply to Count 2 of the charge. This in the opinion of the judge related to administrative functions performed by the applicant. If there were any complaints in regard to theatre slates this was pre- eminently a matter which fell within the purview of the Province.

[20] On appeal before us Counsel for the first respondent having at the outset abandoned the attack on the High Court’s jurisdiction, by and large repeated the arguments that were put before the court a quo and urged us to overturn the findings which I have set out in paragraphs 19.3 to 19.5.

[21] In my opinion the correct starting point is the Joint Medical Scheme Agreement which has been quoted at length supra. That document is of crucial importance in order to arrive at a proper decision in this case. Its terms are plain and unambiguous.

The University requires access to a teaching hospital in order to train its students in the Department of Medicine. A medical staff needs to be appointed to provide the students with the necessary practical training. For that purpose the Agreement provided that a joint medical staff be appointed by both the Province and the University. As indicated members of the Joint Medical Staff could be appointed by the University to various posts and by the Administration to posts approved by it. It is significant that Clause V provides that no professors on the Joint Medical Staff should be appointed on Provincial conditions of employment. The parties to the Agreement clearly envisaged that the Province would control the duties of the Joint Medical Staff insofar as its clinical and administrative work at the hospital was concerned. On the other hand the University would control the academic duties of the Joint Medical Staff. Manifestly the parties to the Agreement intended that there should be a distinction between the two functions. One cannot as the first respondent and its deponent attempt to suggest regard this part of the Agreement as a dead letter. From a practical point of view one can readily discern a difference between purely administrative and clinical functions in a hospital as opposed to academic duties. To my mind the latter relate pre-eminently to the teaching and practical training of students in the field of medicine. The members appointed to the Joint Medical Staff as I have said, are responsible for this. These persons would obviously lecture, demonstrate, set written examinations, hold oral examinations and be responsible for the overall evaluation of the students who study under them. These functions are clearly demarcated from administrative functions which the applicant would perform in the hospital environment. I agree with the court a quo that the appointment of staff is one such function. Also administrative functions encompass the day-to-day organisation of the Department of Orthopaedic Surgery in the hospital. Here, again, I agree with the court a quo that the allocation of operating slates is part and parcel of that activity. While I accept for purposes of this judgment that the first respondent could institute disciplinary proceedings against the applicant arising from his performance of academic duties within the meaning of the said Agreement, it must demonstrate that the necessary jurisdictional facts entitling it to do so are present. It has in my view failed to demonstrate that the substance of the charges levelled against the applicant relate to his academic duties as a member of the Joint Medical Staff. The first respondent’s contention that the applicant’s conduct both in making the alleged appointment and the non-allocation of operating slates somehow is indirectly connected to his academic duties is in my view a wholly unrealistic assertion. As I have said it flies in the face of the express provisions of the said Agreement.

[22] It follows therefore that I fully agree with the findings and the reasoning of the court a quo which I respectfully adopt. In the premises the Disciplinary Tribunal wrongly concluded that it had the necessary jurisdiction and thus the applicant was entitled to move the court a quo for the relief which was correctly granted.

[23] The appeal is dismissed with costs.

_____________

THERON J.

_______________

SWAIN J.

DATE OF JUDGMENT

DATE OF HEARING : 8 FEBRUARY 2008

COUNSEL FOR APPELLANT : MR G.O. VAN NIEKERK SC

INSTRUCTED BY : SHEPSTONE & WYLIE

COUNSEL FOR FIRST MR J. MARAIS SC

RESPONDENT :

INSTRUCTED BY : MACROBERT INC.