Vico v Department of Forestry, Fisheries and Environment and Another (C184/2024) [2024] ZALCCT 19 (27 May 2024)

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable

case No: C184/2024

In the matter between:

THEMBALETHU VICO

Applicant

and

DEPARTMENT OF FORESTRY FISHERIES

AND ENVIRONMENT

First Respondent

DIRECTOR GENERAL OF THE DEPARTMENT OF FORESTRY

FISHERIES AND ENVIRONMENT

Second Respondent

Heard: 24 May 2024

Delivered: 27 May 2024. (This judgment was handed down electronically by emailing a copy to the parties. 24 May 2024 is deemed to be the date of delivery of this judgment).

Summary: urgent application for a final order interdicting a disciplinary hearing. Requirements for a final interdict not met and no exceptional circumstances warranting the court’s interference with an incomplete disciplinary process.

JUDGMENT

GANDIDZE, AJ

Introduction

[1] On 9 May 2024 the applicant, Mr Thembalethu Vico, filed an urgent application to be heard on 24 May 2024, seeking an order interdicting and restraining the first and second respondents from proceeding with a disciplinary hearing against him on 27 May 2024, or on any future date, on the same facts, alternatively an order reviewing and setting aside the decision of the first and second respondent to institute disciplinary proceedings against him. The first respondent is the Department of Forestry Fisheries and Environment and the employer. The second respondent is the Director General of the first respondent and is cited as a party as she is the accounting authority of the first respondent.

[2] The applicant launched the application in his personal capacity, and two days before the hearing of the matter, his union, the National Union of Public Service and Allied Workers (NUPSAW), filed a letter advising that Mr Ngadlela had been appointed to represent the applicant.

[3] The Notice of Motion did not require the respondents to file opposing papers or stipulate a date by which such opposing papers were to be filed as required in terms of Rule 7, read with Rule 8 of the rules of this court[1]. Instead, the Notice of Motion merely records that costs are sought against the first and second respondents in the event that they oppose the application. Because of this, the respondents raised the preliminary point that the Notice of Motion is defective, but in circumstances where an answering affidavit was filed and all the issues were fully ventilated when oral argument was heard, coupled with the fact that the matter has a troubled and lengthy history, it is in the best interests of the parties that the court entertains the application on its merits and disposes of it one way or the other.

Background facts

[4] The pleadings are in excess of 500 pages and most of these documents are of little to no relevance for purposes of determining the crisp issue that the application raises, which is whether this court should permanently interdict the respondents from ever convening a disciplinary hearing against the applicant based on the same facts. The background facts that l consider relevant are set out below and such facts are largely common cause.

[5] The applicant is employed by the first respondent as Director for Fisheries Protection Vessels. He has been in the employment of the first respondent for the last 14 years. Sometime in 2018, he was suspended, pending a disciplinary hearing, in connection with an incident involving the alleged unlawful removal of abalone worth R7,5 million from the first respondent’s stores in January 2018.

[6] Subsequently, a disciplinary hearing was convened, chaired by Advocate Mojapelo. In January 2020, the applicant was cleared of all the charges that he faced.

[7] Dissatisfied with this outcome, the first respondent launched an application in this court seeking to review and set aside the disciplinary hearing outcome and substituting the outcome with one that the applicant was guilty as charged. In the alternative, the first respondent sought an order remitting the matter for a fresh hearing. The first respondent sought and was granted condonation for the late filing of the review application.

[8] In a judgment handed down on 20 March 2023, Van Voore AJ upheld the first respondent’s review and reviewed and set aside the disciplinary outcome. In terms of next steps, the court issued an order:

‘3. Remitting the disciplinary proceedings against the First Respondent to the Applicant to proceed de novo before another chairperson who shall be permitted to rely on the record of the evidence before the Second Respondent, together with any additional evidence adduced by the parties.’

[9] It is to be noted that in the review, the first respondent in this matter was the applicant and the applicant was the first respondent.

[10] Aggrieved by the judgment, the applicant filed an application for leave to appeal, which was refused by Van Voore AJ.

[11] The applicant’s petition for leave to appeal to the Labour Appeal Court was similarly dismissed on 13 August 2023.

[12] At the time that this urgent application came before me, l was advised that there is a pending application for leave to appeal to the Constitutional Court. In his pleadings, the applicant did not divulge that he had unsuccessfully sought to appeal Van Voore AJ’s order and that the matter was pending in the Constitutional Court. These facts only came to the fore in the respondent’s answering affidavit and were admitted during oral argument. This is not insignificant but for now, l continue with the chronology of events.

[13] Following Van Voore AJ’s judgment, the first respondent arranged for the disciplinary hearing to commence afresh before Advocate Shaba SC. In the notice to attend the hearing, the applicant was informed that the first respondent did not intend to lead new evidence and that it would rely on the record that was before the Chairperson of the first hearing.

[14] The hearing recommenced on 6 June 2023, and a debate ensued on whether the Chairperson must decide the matter based on the record or whether the evidence would be led afresh. It was agreed that the parties would make written submissions which the Chairperson would consider, together with the record and issue a directive on the next steps.

[15] Four weeks later the Chairperson issued a ruling that there were gaps in the transcripts and therefore he required oral evidence to be led.

[16] The parties reconvened on 27 September 2023, and the initiator of the hearing, Mr Mnisi informed the Chairperson that the first respondent was relying on the record only and did not intend to lead oral evidence. When the Chairperson insisted that he required oral evidence to be presented, the first respondent brought an application for the recusal of the Chairperson, alleging biasness. The applicant opposed the application.

[17] In its reply, the first respondent persisted with the recusal application but also took issue with what it saw as delays in the

matter.

[18] Whilst the outcome of the recusal application was pending, on 5 December 2023 the first respondent issued a letter to the Chairperson

“relieving” him of his duties as the Chairperson of the disciplinary hearing.

[19] That step by the first respondent was not well received by the applicant, who, with the assistance of his union, wrote to the second

respondent on 6 December 2023 requesting her to withdraw the letter terminating Advocate Shaba SC’s mandate “so that the latter can be allowed to finalise the matter, alternatively the employer to confirm in writing if they are no longer pursuing the matter”. (own emphasis)

[20] When no response was received to the union’s letter, in early January 2024 the applicant filed an application in this court in case number C666/2024 seeking an order (a) declaring that the termination of Advocate Shaba SC’s mandate as the Chairperson of the hearing was unjust and unfair and has caused unreasonable delay of the disciplinary hearing; (b) that the respondent’s conduct in prolonging the disciplinary hearing was causing him harm; (c) that Advocate Shaba SC’s ruling (that oral evidence must be led) be made an order of court. Other orders sought were for the respondents to be found to have incurred fruitless and wasteful expenditure in respect of the hearing before Advocate Shaba SC and not allowing him to complete the task.

[21] The respondents opposed the application and the applicant replied thereto.

[22] On 9 April 2024, the applicant wrote to the Registrar advising that the matter was ripe for hearing and ought to be allocated a hearing date. It is not apparent whether a hearing date for that application has been allocated or not.

[23] In the meantime, the first respondent issued the applicant with a “Notice of Disciplinary Hearing” on 16 and 17 May 2024, to be chaired by Advocate Cassim SC. Even though the notice is dated 29 April 2024, it appears to be common cause that it was received by the applicant only on 2 May 2024.

[24] On 3 May 2024, the applicant wrote back to the respondents as follows:

‘Your e-mail and its attachments dated 2 May 2024 refers.

As you are aware, this matter started in 2017 and I am now facing the disciplinary action for the third time on the same facts. That is obviously unreasonable and unfair to me.

With this, I demand that employer withdraws this matter on or before the end of business today 3 May 2024. Failing which l will bring urgent application to interdict the third disciplinary hearing against me.’

[25] On 7 May 2024 the Office of the State Attorney, on behalf of the respondents, addressed a letter to the applicant informing him that the hearing date had been moved to 27 May 2024 to accommodate him as he was in the country on 16 and 17 May 2024.

[26] The applicant served the urgent application on the same day that the State Attorney wrote to him, and the application was issued by this court on 9 May 2024. As is the practice in this court, the hearing date was arranged with the Registrar, and therefore the respondent’s complaint that there is no indication that the Registrar fixed the hearing date is misplaced.

[27] Next l summarise the contentions of the parties.

Summary of the applicant’s submissions

[28] The applicant submits that the third disciplinary hearing is a clear violation of his right to fair labour practices, which is being done in an unprecedented manner (a reference to the termination of Advocate Shaba SC’s mandate as the Chairperson of the second disciplinary hearing), necessitating the urgent intervention of the court. Expanding on this submission, he contends that the matter is no longer about him, rather it is now about how far the employer can be allowed to have another disciplinary hearing after firing a Chairperson. The firing of Advocate Shaba SC, according to the applicant, has the potential of creating fear in other presiding officers that they will be fired if they do not toe the line, and that such presiding officers will oblige for fear of losing the “economic benefits” that come with chairing the hearing, viz, the legal fees. The new Chairperson also faces the risk of being fired if he gives an indication that he will find the applicant not guilty. For this reason, so the submission goes, the court should interfere and permanently order the stay of the disciplinary hearing.

[29] It is also the applicant’s further submission that the third hearing exposes him to double jeopardy as there have already been two disciplinary hearings against him, based on the same facts. The submission is further that because the respondents intend to rely on the same record relied upon by Advocate Mojapelo who cleared him of all charges, coupled with the fact that Van Voore AJ did not find him guilty based on that same record, and that Advocate Shaba SC ruled that he is unable to make a guilty finding on that same record, the respondent’s decision to institute a hearing before a third Chairperson is absurd and is not driven by a desire to correct unacceptable behaviour. The submission is therefore that the decision to initiate a third hearing is unlawful, arbitrary, egregious conduct and falls to be set aside.

[30] Expanding on the proceedings before Advocate Shaba SC, it is the applicant’s contention that he could not be found guilty on the material before Advocate Shaba SC, hence the directive for oral evidence to be led. Instead of leading oral evidence as directed, the respondents opted to terminate the Chairperson’s mandate, with the consequence that the second hearing “ended with the employer having failed to discharge its responsibility to the Chairperson… in proving that the employee was guilty of the charges”. Differently stated, the respondent’s decision to terminate Advocate’s Shaba SC’s mandate as the Chairperson of the hearing has the effect that the second disciplinary hearing ended with a “not guilty” finding.

[31] As regards the planned hearing before Advocate Cassim SC, the applicant submits that this will be the respondents’ “third

bite of the cherry”, which is not what Van Voore AJ ordered.

[32] The applicant also relies on the decisions in National Education Health and Allied Workers Union (NEHAWU) v University of Cape Town and Others[2] and Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others[3] which found that labour disputes must be resolved expeditiously. He has a right to a fair and speedy hearing, but the matter has been dragging since 2018 and the third hearing being instituted 6 (six) months after the second hearing terminated in December 2023, and six years after the matter commenced offends against his right to a fair and speedy hearing.

[33] The employee also relies on his right to choose a trade, occupation and profession which is being infringed in that he has lost out and will lose out on applying for the position of Chief Director. The fact of the pending disciplinary hearing has been used and will be used to exclude him from running for that position. He has been rendered a “perpetual suspect”. As l understand from the applicant’s pleadings, there is a pending discrimination dispute regarding his exclusion from being considered for the Chief Director post.

[34] He adds that his ability to focus on work is impacted by this never-ending matter. He is drained emotionally, and the quality of

his life has also been negatively affected.

[35] He submits that he has prospects of succeeding as the respondents do not have any new evidence against him, supported by the fact that three hearings (by Advocate Mojapelo, Van Voore AJ and Advocate Shaba SC) have found him not guilty based on the record as it currently stands. The applicant also accuses the respondent’s witness of having lied and that the respondent concealed material evidence.

[36] Finally, the applicant submits that he was left with no other alternative but to approach this court after the respondents did not respond to his demand not to institute a third disciplinary hearing against him.

Respondent’s submissions

[37] The second respondent deposed to the answering affidavit. She explains that as the accounting officer for the first respondent, she has a responsibility, in terms of the Public Finance Management Act No. 1 of 1999 (PFMA) to ensure that there are effective, efficient, and transparent systems of financial risk management and internal controls in place and that where employees contravene these controls, she is required to take action. She is also an accounting officer for the Marine Living Resource Fund (MLRF) which is responsible for the operational expenses of the Fisheries Management branch of the first respondent.

[38] In response to the application, the respondents raise these points in limine:

38.1 Lack of urgency as the applicant has been aware since March 2023 of Van Voore AJ’s judgment directing that a fresh hearing be convened, and this application was brought more than a year later.

38.2 In January 2024 the applicant launched an application under case number C666/2024 seeking several orders emanating from the disciplinary proceedings against him and since that application is still pending, the current application constitutes an abuse of court processes.

38.3 The court lacks jurisdiction to entertain an application as the issue of a fresh hearing was disposed of by Van Voore AJ and thus far the applicant’s applications to appeal against the judgment have been unsuccessful, with the latest attempt at appealing pending in the Constitutional Court. The respondents also submit that the application is misdirected as the judgment of Van Voore AJ stands until it is set aside by a higher court.

38.4 The notice of motion is defective because (a) the applicant has not given reasons why the matter should be heard on an urgent basis; (b) there is no indication that the hearing date was fixed by the Registrar as required in terms of Rule 8(4) of the rules of this court and (c) the respondents were not furnished with information obtained from the Registrar as required in terms of Rule 8(5) of the rules of this court.

[39] Even though not couched as points in limine, the respondents raised these further defences:

39.1 The application is bad in law as the first respondent has already commenced disciplinary proceedings against the applicant, and this court interfering with that process would infringe on the principle of separation of powers.

39.2 Any dispute relating to an alleged unfair labour practice should be dealt with in terms of Chapter 10 of the Senior Management Service (SMS) handbook which requires such disputes to be referred to the Public Service Commission for a decision, otherwise this court interfering infringes on the doctrine of the separation of powers between the judiciary and the executive.

[40] The respondents also responded ad seriatim to the applicant’s founding affidavit giving their version of the chronology which l have since established to be largely common cause. More specifically and as l recorded elsewhere above, the respondents have brought to the court’s attention that thus far there have been unsuccessful attempts to appeal Van Voore AJ’s order. The applicant did not place these facts before the court in his founding papers. In determining this application, it turned out that the omission by the applicant to include such crucial facts in his application is not insignificant.

[41] In its opposing papers, the respondents have explained why Advocate Shaba SC’s mandate was terminated, the essence of which is that he was delaying the finalisation of the matter by directing parties to lead oral evidence in circumstances where the first hearing with witnesses took in excess of 10 months to complete and that calling for that evidence to be led again would implicate the applicant’s right to a speedy trial and be costly for both parties.

The applicable legal principles

[42] The court’s jurisdiction and power to entertain the application is found in sections 157(1) and (2), read with section 158(1) of the Labour Relations Act[4].

[43] Both parties acknowledged that the established legal principle in these matters is that this court will only interfere in uncompleted

disciplinary proceedings if exceptional circumstances exist.[5] Exceptional circumstances will be found to exist if, for instance, failure to intervene would lead to grave injustice or whether justice might be attained by other means. This is not a closed list of the circumstances in which this court may intervene, and the court must exercise of its discretion whether or not to intervene.

[44] Given that it is now established law that this court may intervene and interdict incomplete disciplinary hearings, it would appear that this puts paid to the respondent’s contention that the court’s intervention would infringe on the principle of the separation of powers.

[45] As this is an application for final relief in the form of an order interdicting the respondents from proceeding with the disciplinary hearing against the applicant on 27 May 2024, or ever again in respect of the same facts, the applicant must demonstrate and satisfy the following requirements:[6]

45.1 A clear right;

45.2 An injury actually committed or reasonably apprehended;

45.3 The absence of an alternative remedy.

Urgency

[46] As the interdict is sought on an urgent basis, the applicant is also required to put up facts explaining why the matter cannot be heard in due course and why he must be allowed to “skip the queue” as there are many other litigants waiting to be heard by this court.

[47] The application was filed after the applicant was made aware, on 2 May 2024, that the hearing would commence on 16 and 17 May, which hearing date was later moved to 27 May 2024 to accommodate him. Even though the applicant became aware as early as March 2023 when the Van Voore AJ judgment was handed down that a disciplinary hearing against him would proceed, it is the latest notice to attend the disciplinary hearing which triggered this application. The applicant did not sit on his hands after he received that notice. He wrote to the respondents demanding the withdrawal of the notice and did not receive a response. Instead, the State Attorney notified him of the new date for the hearing, which meant that his demand for the notice to attend the hearing to be withdrawn would not be complied with. He filed this application on the same day that the State Attorney sent him its letter. l am satisfied that the applicant acted with haste and that the matter is urgent given the 27 May 2024 hearing date. The matter was argued on a Friday and this judgment had to be ready by Monday, 27 May 2024, the date of the scheduled disciplinary hearing.

Does the applicant have a clear right to the relief he seeks?

[48] The relief sought is an order interdicting and restraining the respondents from proceeding with the disciplinary hearing on 27 May 2024 or any future date. In other words, the applicant is seeking final relief which would have the effect that the respondents would be interdicted from proceeding with a disciplinary hearing against him, on the same facts.

[49] The right to fair labour practices is the right asserted by the applicant in support of the application. While it is so that this

court may intervene in incomplete disciplinary proceedings, the biggest hurdle preventing this court from coming to his assistance is the judgment of Van Voore AJ handed down in March 2023. The order issued was for the respondents to commence a fresh disciplinary

hearing before a different Chairperson. Therefore, it is not open to this court to issue an order that goes against an earlier order of this same court. As submitted for the respondents, Van Voore AJ’s order stands until it is set aside.

[50] In his pleadings and for reasons that were not explained, the applicant omitted to include material information regarding his unsuccessful attempts to appeal Van Voore AJ’s order, and such information was brought to the fore in the respondent’s

answering affidavit. The applicant must have known that once information about his thus far unsuccessful attempts to appeal Van

Voore AJ’s order comes to this court’s attention, that will be the end of the matter. Granting the relief sought by the applicant would be granting him that which he has been denied by the Labour Appeal Court and would also render the appeal pending in the Constitutional Court academic. Unless new exceptional circumstances come to light, only the Constitutional Court has the final say on whether the disciplinary hearing ordered by Van Voore AJ should take place.

[51] The alternative relief sought by the applicant is an order reviewing and setting aside the decision to hold a fresh hearing against the applicant. This relief ignores that it is the court, and not the respondents, that ordered a fresh hearing. The applicant is aware that the court’s decision is not reviewable but appealable, hence his attempts at obtaining leave to appeal Van Voore AJ’s judgment.

[52] As the fresh hearing has been sanctioned by the court, it must follow that the principle of double jeopardy finds no application.

[53] The further submission that a fresh hearing as sanctioned by Van Voore AJ has already been convened and finalised is factually

incorrect. The termination of the mandate of a Chairperson before he or she pronounces on the guilt or otherwise of an employee cannot be said to be the finalisation or completion of a disciplinary process. The letter sent to the second respondent by the applicant’s union in December 2023 acknowledged that Advocate Shaba SC had not finalised the disciplinary proceedings. A terminated hearing cannot have the effect that an employee has been found not guilty, as submitted by the applicant. In the absence of an outcome by Advocate Shaba SC on the applicant’s guilt or otherwise, it cannot be said that the fresh hearing before Advocate Cassim SC (or any other Chairperson) will be the third hearing. Even if one calls it a third hearing, there has not been a second disciplinary hearing which pronounced on the applicant’s guilt or otherwise following Van Voore AJ’s order of March 2023.

[54] The other relief sought in the founding affidavit and not in the notice of motion is a declaratory order that the termination of

Advocate Shaba SC’s mandate as the Chairperson was unlawful. Even if the court were to entertain relief sought in a founding

affidavit and not in a Notice of Motion, the hurdle for the applicant is that he sought precisely the same relief in case number C666/2024, and that matter is still to be decided. He elected to institute those proceedings in the ordinary course and not on an urgent basis, and that was his choice to make.

[55] It is indeed so that the applicant has a right to a fair and speedy trial. In my view, the delays in respect of the period before the Van Voore AJ judgment can be taken to have been condoned, unless of course, the Constitutional Court upholds the applicant’s appeal against Van Voore AJ’s judgment. In respect of the period after Van Voore AJ’s judgment, any alleged violation or infringement of the right to a speedy trial can be challenged in due course, as procedural unfairness, if the applicant is ultimately found guilty and is dismissed. The Constitutional case authorities relied upon by the applicant make this point.

[56] When disciplinary proceedings take long to conclude, there can be no debate that this might emotionally drain an employee and negatively

impact such employee’s prospects of being considered for positions that are advertised. However, employees have recourse

against their employers in such cases. To drive the point home, the applicant states that he has already filed a discrimination claim against the second respondent for excluding him from consideration for the Chief Director position.

[57] The applicant’s founding affidavit addresses his prospects of success in the matter. This is not a consideration when deciding

applications of this nature. To the extent that the prospects of success relate to the fact that he will not be found guilty by any Chairperson, then it cannot be said that he has no adequate alternative remedy if this court does not intervene to interdict the proceedings.

[58] In the absence of a clear right to the relief he seeks, that has to be the end of the road for the applicant in so far as this

application is concerned. Notwithstanding this, l deal with the other requirements for a final interdict.

Reasonable apprehension of harm

[59] The reasonable apprehension of harm raised is in relation to Advocate Cassim SC as the Chairperson of the hearing to be held, or any other Chairperson who might be appointed, not being impartial for fear of being fired in the same way that Advocate Shaba SC’s mandate was terminated. As l have found above, there is a pending application before this court aimed at challenging the termination of Advocate Shaba SC’s mandate. It is for this court, in due course, to determine that issue. If there were developments that necessitated hearing that application on an urgent basis, the applicant would have done the necessary to ensure that the matter was heard on an urgent basis. He is not new to the processes and procedures of this court given the history of the matter. He is also being represented by the union that can advise him on such matters.

[60] The findings made regarding the absence of a clear right also find application in the assessment of the reasonable apprehension of harm requirement.

Absence of alternative remedy

[61] In circumstances where there is a pending application for leave to appeal against Van Voore AJ’s judgment, it cannot be said that the applicant does not have an alternative remedy in challenging the convening of a fresh disciplinary hearing against him. That court may well come to his assistance and reverse Van Voore AJ’s judgment. Alternatively, the Constitutional Court will uphold Van Voore AJ’s judgment. As l found above, in the absence of exceptional circumstances justifying this court’s interference with the disciplinary process against the applicant, only the Constitutional Court can resolve the issue of whether a fresh hearing must be convened.

[62] As regards the alleged unlawful termination of Advocate Shaba SC’s mandate, the issue will be decided when the matter filed under case number C666/2024 is heard.

[63] This requirement has not been met.

Conclusion

[64] The applicant has failed to satisfy all or any of the requirements for a final interdict. He has not demonstrated exceptional circumstances warranting this court’s interference with the disciplinary hearing scheduled to commence on 27 May 2024.

[65] As far as costs are concerned, even though there is some merit in the respondent’s contention that the application constitutes an abuse of the court processes given the pending appeal in the Constitutional Court, viewed together with the pending application in Case No 666/2024, l have exercised my discretion against granting a costs order against him as this will have the effect of deterring similarly circumstanced employees aggrieved by the employer’s conduct regarding a disciplinary process from approaching this court to have their disputes ventilated. Such employees must not be prevented from approaching this court for relief, but they must be alive to the fact that in some cases the court may well order costs against them if a case for costs is made.

[66] In the premise, I make the following order:

Order

1. The application is dismissed.

2. There is no order as to costs.

T Gandidze

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Mr M Ngadlela

Instructed by: National Union of Public Service & Allied Workers

For the Respondent: Mr Mnisi

Instructed by: The State Attorney

[1] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[2] 2003 (3) SA 1 CC; [2002] ZACC 27 at para 31.

[3] 2019 (4) BCLR 506 (CC); [2019] ZACC 3.

[4] Act 66 of 1995, as amended.

[5] Booysen v The Minister of Safety and Security [2011] 1 BLLR 81 (LAC); (2011) 32 ILJ 112 (LAC) at para 54, and Law Society of South Africa and others v President of the Republic of South Africa and others 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 CC at paras 24 and 25.

[6] Setlogelo Appellant v Setlogelo Respondent 1914 AD 221.