Van Eck v Acting Executive Officer of the Housing Development Agency and Others (J1583/21) [2022] ZALCJHB 51 (7 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J1583/21

In the matter between:

MELONEY VAN ECK

Applicant

and

THE ACTING EXECUTIVE OFFICER OF THE

HOUSING DEVELOPMENT AGENCY First Respondent

HOUSING DEVELOPMENT AGENCY

Second Respondent

MSIKINYA ATTORNEYS & ASSOCIATES

Third Respondent

LINDA MISIKINYA

Fourth Respondent

Heard: 25 February 2022

Delivered: 07 March 2022

(In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 07 March 2022)

JUDGMENT

PHEHANE, J

Introduction

“The lady doth protest too much, methinks.” – William Shakespeare.

[1] This is an extraordinary application. The applicant approached this Court in December 2021, under the guise of an ex parte application, seeking interim and urgent relief to interdict and restrain the respondents from finalising an investigation into

allegations of misconduct pertaining to misrepresentation by the applicant, without first considering her version and without first

complying in terms of the Promotion of Access to Information Act[1] (PAIA). This information, according to the applicant, concerns previous investigation reports by Poswa Inc. and MNS Attorneys into the same allegations of misrepresentation.

[2] The second respondent alleges that the applicant misrepresented facts regarding her academic qualifications. As a result of this

misrepresentation, the applicant was appointed to a senior position. Before subjecting the applicant to a disciplinary hearing, the second respondent commissioned an investigation by the third and fourth respondents into her misconduct.

[3] The applicant surreptitiously obtained an interim interdict on an urgent basis on 15 December 2021. The order reads as follows:

‘Having heard Mr Makhubele, counsel for the Applicant and having read the papers filed of record:

IT IS ORDERED THAT:

1. This application is heard as one of urgency as contemplated in rule 8 and the ordinary time periods and forms of service, prescribed in the Rules for the Conduct of Proceedings in the Labour Court, are accordingly dispensed with.

2. The Respondents [are to] appear before this Court on 28 April 2022 at 10h00, to show cause why an order in the following terms should not be made final:

2.1 The third and fourth respondents are interdicted and restrained from finalising the investigation report into allegations of misrepresentation of qualifications by the applicant without first receiving and considering the investigation reports of MNS attorneys and Poswa INC which investigated and made findings on the same issue of alleged misrepresentation of qualifications.

2.2 The third and fourth respondents are interdicted and restrained from receiving from the first and second respondents, an investigation

report or preliminary findings into allegations of misrepresentation of qualifications by the applicant, without first receiving and taking into account the applicant’s version of events.

2.3 The first and second respondents are interdicted and restrained from receiving an investigation report from the third and fourth

respondents into allegations of misrepresentation of qualifications by the applicant, without first complying with the applicant’s

PAIA applications in which the applicant requires to be furnished with copies of investigation reports by MNS attorneys and Poswa INC on allegations that she misrepresented her qualifications.

2.4 The third and fourth respondents are interdicted and restrained from interviewing or questioning the applicant on the allegation of misrepresenting her qualifications pending the first and second respondent’s compliance with the PAIA applications.

2.5 Costs of this application are reserved for final determination on the return date.

3. You Part B of the notice of motion is postponed sine die.’

[4] Counsel for the applicant unequivocally informed this Court, that the applicant purposefully did not want the appearance of the respondents at Court on 15 December 2021 as the applicant held the belief that should the respondents be notified of the hearing date, it would defeat the purpose of the relief sought and that the respondents would move rough shot ahead with the investigation.

[5] Counsel for the respondents informed this Court that the application was instituted on 10 December 2021, but the respondents were only notified of the hearing date a day before it was due to commence (i.e. on 14 December 2021). The respondents were therefore under pressure to compile the opposing affidavit overnight. The opposing affidavit was filed at approximately 12h00 on 15 December 2021. At this point, the hearing was done and dusted and the interim interdict was granted. Further, the respondents had the opportunity to listen to the audio recordings of the virtual hearing of 15 December 2021 wherein the applicant informed the Court that she was proceeding with the application on an ex parte basis. The respondents accordingly anticipated the rule nisi. This is the matter that served before me. The respondents seek the discharge of the rule nisi. The applicant seeks the confirmation of the rule nisi.

Argument

[6] The applicant applied for, was interviewed and subsequently appointed to the senior role of Head: Strategic Support in the second respondent in 2020.

[7] According to the applicant, in July 2021, Poswa Inc. investigated irregular appointments. The outcome of this investigation exonerates her, as it states that she met the requirements of the post.[2] This, she was informed by the erstwhile Legal Manager of the first respondent, one Mr Cele. The requirement of the post, relevant to this dispute, is that the incumbent must possess an NQF7 qualification. The bone of contention is that according to the first and second respondents, the applicant does not possess an NQF7 qualification and that she misrepresented this fact in her curriculum vitae (CV) when she applied for the position. The applicant’s version is that she at no stage made any misrepresentation.

[8] The applicant further alleges that MNS Attorneys was appointed to investigate human resources irregularities. She does not know whether this investigation has been finalised.

[9] The first and second respondents contend that the two investigations did not involve allegations of the misrepresentation by the applicant. Poswa Inc. was mandated to investigate irregular expenditure and MNS Attorneys was mandated to investigate misconduct of another employee.[3] The first and second respondents accordingly deny that the applicant was previously investigated regarding the misrepresentation. In the circumstances, the Poswa Inc. and MNS Attorneys investigations are irrelevant.

[10] An investigation by Internal Audit brought to the fore that the applicant did not possess the requirement of an NQF7 qualification of the role as was advertised, and that she scored the lowest in the interviews.[4] In addition, the agent that presented the applicant’s CV recorded that she did not meet the minimum requirements of the job.[5] The first and second respondents accordingly appointed the third and fourth respondents on 17 November 2021, to investigate the allegations of misconduct and to hold disciplinary proceedings should it transpire that the applicant has a case to answer.[6]

[11] On 19 November 2021, the first respondent informed the applicant by letter, that she was being investigated, pursuant to the findings as contained in the Internal Audit report.[7] On 22 November 2021, the applicant, through her attorney of record, delivered a PAIA request to the second respondent, requesting access to inter alia, the Poswa Inc. and MNS Attorneys reports, human resources documentation relating to the recruitment process regarding her appointment, as well as the Internal Audit report. The applicant required access to these reports by 10 December 2021.

[12] In a letter dated 7 December 2021, the fourth respondent informed the applicant that he wanted to schedule an interview with her on the following day (8 December 2021). Pursuant to a series of correspondence between the applicant’s attorney of record and the fourth respondent, the interview did not take place on 8 December 2021. The last correspondence proposed the date of 13 December 2021.[8] The applicant laboured under the impression that the respondents hurried the investigation and deliberately made it difficult for her to attend the interview. The applicant agreed to be interviewed but required that she first be furnished with the Poswa Inc. and MNS Attorneys reports before attending such interview.

[13] The applicant instituted the application for urgent interdictory relief on 10 December 2021, despite agreeing to participate in the interview and despite communication on the scheduling of the interview taking place. I enquired from the applicant’s

representative why the matter was urgent. He stated that the applicant will be prevented from being considered to act as a chief

executive officer and will be prevented from being employed anywhere else with the investigation hanging over her head. This, in my view, does not make the application urgent.

[14] When regard is had to the manner in which the applicant approached this Court for urgent relief, it is apparent that she acted in a clandestine manner. It would appear that when the matter was set down for hearing, this Court required proof of service of the application on the respondents. The attitude of the applicant was that it was not necessary to serve the application on the respondents, as this would defeat the purpose of the relief sought. The applicants went so far as to admonish the Court for requiring proof of service as this “alerted” the respondents of the application. Nonetheless, the Court required a service affidavit. This service affidavit was subsequently filed at Court and the respondents were, therefore made aware, on 14 December 2021, that the matter was set down for hearing on 15 December 2021 This necessitated the drafting of the opposing affidavit on extremely short notice. The affidavit was delivered on 15 December 2021 but did not come to the attention of the presiding Judge.

[15] The respondents contend, and correctly so, that this Court has no jurisdiction to adjudicate a dispute that requires it to interfere in incomplete disciplinary processes. This principle is now well-established in this Court.[9]

[16] According to the respondent, the issue is quite simple: if the applicant does indeed possess the required qualification, she need simply produce it to the investigator. Further, nothing prevents an employer from instituting investigations into conduct against its employees, where this is justified.

[17] Further, the respondents contend, and correctly so, yet again, that this Court has no jurisdiction to adjudicate PAIA applications. The applicant has a remedy in the mechanism of PAIA. She curiously alleged that she had no alternative remedy to obtain the documents she requested in terms of PAIA.[10] When challenged by the respondent to the effect that this Court lacks jurisdiction to adjudicate PAIA disputes,[11] the applicant does an about-turn and agrees that this Court lacks jurisdiction and that she has approached the High Court for relief in terms of PAIA.[12] The applicant is mum as to when she approached the High Court as she had, on her own terms, demanded access to the information she sought by 10 December 2021, the very date she instituted this urgent application in this Court. The applicant insists that the urgent application was brought on an ex parte basis. The applicant has not made out a case on why her application should be heard ex parte.[13] Her case is that she would only participate in the investigation upon the first and second respondents complying with her PAIA request (the applicant made one PAIA application, although the interim order refers to applications in the plural). It is trite that the applicants in ex parte applications must disclose material facts to the Court, which might influence the Court in coming to a decision. Withholding or

suppressing material facts entitles the Court to set aside the interim order.[14] The applicant failed dismally to disclose material facts to this Court, that she had approached the High Court for relief in terms of PAIA and that the parties were in the process of communicating about dates for the interview which she agreed to attend albeit under protest (without the Poswa Inc. and MNS Attorneys reports), beyond 8 December 2021. On this basis, the rule nisi falls to be discharged.

[18] Insofar as urgency is concerned, I reiterate my remark above, that being appointed to act as a chief executive officer and concerns about future employment is no basis for urgency. Further, the applicant’s claim that the third and fourth respondents were in haste to finalise the report on 8 December 2021 as a ground of urgency holds no water, as on 10 December 2021, she was aware that correspondence was exchanged to find another date beyond 8 December 2021, to interview her.

[19] The applicant contends that the reconsideration application is fatally defective owing to the founding affidavit not being properly

commissioned. This is a hopeless technical argument, as the affidavit is properly commissioned and it, in any event, has attached to it, an answering affidavit that was filed on 15 December 2021. The applicant saw fit to file replying affidavit all the same. The protestation follows a long list of protestations from inception. This brings me to the conduct of the applicant before this Court and the issue of an award as to costs.

Costs

[20] The applicant’s case is woeful on all fronts. This Court lacks jurisdiction to interfere in incomplete disciplinary proceedings. It also lacks jurisdiction to adjudicate PAIA disputes. The applicant failed to make material disclosures in her ex parte application by not disclosing that she has approached the High Court for relief.

[21] The applicant persists in seeking a final order in circumstances where this application should not to have been brought before this Court in the first place. The basis of opposing the reconsideration application is technical and lacks merit. The applicant purposefully

gave the respondents a severely restricted time frame to oppose the application in circumstances where this was not justified. In view of the applicant’s conduct, I exercised my discretion to order costs against the applicant.

[22] In view of the afore-going, the following order is made:

Order

1. The rule nisi issued on 15 December 2021 is discharged.

2. The applicant (Ms Van Eck) is to pay the costs of the respondents in opposing the urgent application and the costs of the reconsideration

application.

_______________________

M. T. M. Phehane

Judge of the Labour Court of South Africa

Appearances:

For the Respondents (Applicants in the Reconsideration Application): Adv. X.Matyolo

Instructed by:

For the Applicant: Adv. M. Makhubele

[1] Act 2 of 2000.

[2] The requirements of the post appear on p 39 in the advertisement of the position.

[3] The letter by the first respondent appointing Poswa Inc. to conduct an investigation into allegations involving irregular expenditure is dated 28 July 2021 and appears at “DN3” at pp 75 to 76 and the appointment letter of MNS Attorneys to investigate misconduct of another employee, dated 7 September 2021, appears at “DN4” at pp 77 to 78.

[4] The Internal Audit report dated 9 July 2021, appears at “MEL5” at pp 64 to 85.

[5] “DN1”, p. 33.

[6] The appointment letter of the third and fourth respondent appears at “MEL8” at pp 89 to 90.

[7] “MEL7”, p 88.

[8] “MEL13” p. 120. See also, “MEL 16”, pp 123 to 124.

[9] Lieutenant Shezi v SAPS and Others, unreported judgment, case no. J8521/20, dated 15 September 2020; Booysen v Minister of Safety and Security & Others (2011) 32 ILJ 112 (LAC), Ngobeni v PRASA Cres and others [2016] JOL 36588 (LC) and Adv. Phumeza Futshane v Adv. Karensa Millard N.O and Others, unreported judgment, case no. J1309/21, dated 3 November 2021.

[10] Founding affidavit, para 82, p 34.

[11] Answering affidavit, para 72.

[12] Replying affidavit, para 74, p 107.

[13] In National Director of Public Prosecutions v Gumede [2020] 3 BPLR 628 (MM), the Court states as follows at para 37 regarding ex parte applications: ‘In addition, in Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs, at paragraphs 80 and 81, it was said as follows over the use of ex parte procedures: “[80] It is a fundamental principle of the administration of justice that relief should not be granted against a person without allowing such person to be heard. Very rarely is a case so urgent that there is no time to give notice. In other cases, there may be a reasonable and substantiated apprehension that giving notice would defeat the applicant’s legitimate purpose in seeking relief, for example because the respondent would dispose of property or evidence that the applicant wishes to claim or have preserved. In cases of this kind a court may be willing to dispense with the need to give notice but this power should be exercised with great caution and only in exceptional circumstances. The procedure adopted is even more objectionable if the applicant’s case rests largely on untested hearsay, which it was in this case. [81] This approach also accords with the way in which English courts deal with ex parte applications. In Re First Express Ltd Hoffmann J said the following of the claimant’s use of ex parte proceedings: ‘I am firmly of the view that it was wrong for the application to be made ex parte. It is a basic principle of justice that an order should not be made against a party without giving him an opportunity to be heard. The only exception is when two conditions are satisfied. First, that giving him such an opportunity appears likely to cause injustice to the applicant, by reason either of the delay involved or the action which it appears likely that the respondent or others would take before the order can be made. Secondly, when the court is satisfied that any damage which the respondent may suffer through having to comply with the order is compensatable under the cross-undertaking or that the risk of uncompensatable loss is clearly outweighed by the risk of injustice to the applicant if the order is not made. There is, I think, a tendency among applicants to think that a calculation of the balance of advantage and disadvantage in accordance with the second condition is sufficient to justify an ex parte order. In my view, this attitude should be discouraged. One does not reach any balancing of advantage and disadvantage unless the first condition has been satisfied. The principle audi alteram partem does not yield to a mere utilitarian calculation. It can be displaced only by invoking the overriding principle of justice which enables the court to act at once when it appears likely that otherwise injustice will be caused.’” (Footnotes omitted).’

[13] In National Director of Public Prosecutions v Gumede [2020] 3 BPLR 628 (MM), the Court states as follows at para 37 regarding ex parte applications:

‘In addition, in Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs, at paragraphs 80 and 81, it was said as follows over the use of ex parte procedures:

“[80] It is a fundamental principle of the administration of justice that relief should not be granted against a person without allowing such person to be heard. Very rarely is a case so urgent that there is no time to give notice. In other cases, there may be a reasonable and substantiated apprehension that giving notice would defeat the applicant’s legitimate purpose in seeking relief, for example because the respondent would dispose of property or evidence that the applicant wishes to claim or have preserved. In cases of this kind a court may be willing to dispense with the need to give notice but this power should be exercised with great caution and only in exceptional circumstances. The procedure adopted is even more objectionable if the applicant’s case rests largely on untested hearsay, which it was in this case.

[81] This approach also accords with the way in which English courts deal with ex parte applications. In Re First Express Ltd Hoffmann J said the following of the claimant’s use of ex parte proceedings:

‘I am firmly of the view that it was wrong for the application to be made ex parte. It is a basic principle of justice that an order should not be made against a party without giving him an opportunity to be heard. The only exception is when two conditions are satisfied. First, that giving him such an opportunity appears likely to cause injustice to the applicant, by reason either of the delay involved or the action which it appears likely that the respondent or others would take before the order can be made. Secondly, when the court is satisfied that any damage which the respondent may suffer through having to comply with the order is compensatable under the cross-undertaking or that the risk of uncompensatable loss is clearly outweighed by the risk of injustice to the applicant if the order is not made.

There is, I think, a tendency among applicants to think that a calculation of the balance of advantage and disadvantage in accordance with the second condition is sufficient to justify an ex parte order. In my view, this attitude should be discouraged. One does not reach any balancing of advantage and disadvantage unless the first condition has been satisfied. The principle audi alteram partem does not yield to a mere utilitarian calculation. It can be displaced only by invoking the overriding principle of justice which enables the court to act at once when it appears likely that otherwise injustice will be caused.’” (Footnotes omitted).’

[14] Commissioner: Companies and Intellectual Property Commission v Independent Music Performance Rights Association & Another [2021] JOL 49429 (GP) at para [13]; Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs and a related matter [2019] 2 All SA 1 (SCA).