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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

CASE NO: C60/08

DATE: 14 FEBRUARY 2008

In the matter between:

R BOOYSEN Applicant

and

SOUTH AFRICAN POLICE SERVICES First Respondent

MINISTER OF SAFETY & SECURITY Second Respondent

JUDGMENT

CHEADLE, AJ

Introduction

[1] This was an application, coupled with an interim order, to intervene in disciplinary proceedings, the effect of which was to review a decision by the chairperson of the enquiry (5^th Respondent) that the Applicant was fit and capable of participating in the enquiry and to prevent the proceedings from continuing at all or until some independent third party determined that he was fit and able to participate.

[2] This is an edited and expanded version of the reasons given ex tempore on 12 February 2008.

Brief outline of the facts

[3] The Applicant was diagnosed with post traumatic stress disorder in February 2007. While on sick leave, an investigation was instituted. On the basis of that investigation, disciplinary charges were preferred against him on 11 July and he was called to attend a disciplinary hearing on 3 August. On 16 July, the Applicant’s attorney advised the Provisional Commissioner (the 3^rd Respondent) of the Applicant’s illness and sought a postponement of the hearing. It appears that a postponement was granted because the disciplinary proceedings commenced on 31 October. In the meantime, however, the Applicant had been suspended without pay. That suspension gave rise to an urgent application – the ‘suspension without pay application’.

[4] The Applicant attended the hearing that commenced on 31 October 2007 but suffered a ‘flashback/severe panic attack’ - a symptom associated with the illness – on 2 November. On 22 November, the Labour Court, under the ‘suspension without pay application’, granted an order, by agreement, to the effect that if the Applicant contended that he was prevented by his condition from participating in the hearing, the chairperson of the hearing must decide the issue. The disciplinary hearing was re-scheduled to continue on 3 December. The Applicant, however, was hospitalised from 30 November and the hearing was postponed to 8 January 2008.

[5] At the hearing on 8 January, a further application to postpone the hearing was made on behalf of the Applicant. The evidence of the psychiatrist treating him and another psychiatrist was led in support of the postponement. The Provincial Commissioner called a psychiatrist to counter the evidence led by the Applicant’s witnesses. The hearing was adjourned to 1 February in order for the chairperson to obtain the views of an independent psychiatrist. The hearing reconvened on 6 February when the independent psychiatrist gave evidence. The chairperson then decided that the Applicant was fit and capable of participating the hearing. Because the hearing was scheduled to commence on 13 February, the Applicant applied for an urgent order to prevent the disciplinary hearings from proceeding.

[6] There is another part of the story that needs to be told. The Applicant sought an order barring the respondents from entering into the merits of the review until they had submitted themselves to the judgment of Nieuwoudt AJ arising from the ‘suspension without pay application’. The order in that application, given on 5 February 2008, varied the decision to suspend without pay to require the respondents to continue to pay the employer and employee contributions to the Applicant’s medical aid fund. The order is to last until the dispute concerning the suspension without pay is determined by the Safety and Security Sectoral Council. In his reasons for the order, Niewoudt AJ held that the Applicant had established a clear right based on Regulation 13(2)(d). That Regulation permits a suspension for a maximum of 90 days. The 90 day period in respect of the Applicant’s suspension lapsed at the end of November 2007. The Respondents had not paid the Applicants remuneration from the expiry of the 90 day period to date. That, the Applicant, contended was unlawful, and not in accordance with Niewoudt AJ’s finding.

Application to bar

[7] Let me first deal with the prayer to bar the Respondents from entering into the merits of the review. Having held that the Applicant had a clear right not be suspended for more than 90 days, Niewoudt AJ limited his order to requiring the respondents to pay medical aid contributions. He did so because the Applicant did not suffer irreparable harm and because he had an alternative remedy. The relief that the Applicant is now seeking indirectly is something he failed to achieve in his suspension without pay application – namely payment while under suspension. Moreover the prayer was tagged on to the Applicant’s replying affidavit signed, filed and served on 12 February, the day of the hearing. There seemed no point to bar the Respondents given that they had already filed an answering affidavit, to which the Applicant had replied, given that they had commenced argument and given that the proceedings were adjourned by agreement to the 14^th in order to allow the Respondents an opportunity to respond more fully to the Applicant’s founding affidavit. In other words, the horse had bolted. I accordingly declined to grant the order.

Applicant’s case

[8] I have taken the view that this case turns on whether the Applicant has a right to review and interdict the conduct of disciplinary proceedings. The Applicant seeks to base its relief, and therefore this Court’s jurisdiction, on one or more of the following grounds:

• the right to a fair dismissal procedure under the LRA;

• the breach of the constitutional rights to dignity, fair labour practices and fair administrative action; and

• the inherent power of the Labour Court to remedy an injustice

For the reasons that follow I take the view that it does not have jurisdiction if the relief sought is based on any one of these grounds and accordingly the Applicant has not demonstrate a right to the relief. It is unnecessary there for to consider the other requirements for either final or interim relief.

[9] In essence the Applicant’s contention is that the Labour Court has jurisdiction under section 157 to intervene in disciplinary proceedings and has the power under section 158 to interdict them from continuing and granting appropriate relief (such as the independent determination of the Applicant’s ability to participate in disciplinary proceedings). An interdict is a discretionary remedy and the courts have over a long period of time set their face against interference in uncompleted proceedings except in exceptional circumstances.

[10] The principle is best set out in two Appellate Division cases. In Walhaus & others v Additional Magistrate, Johannesburg & another 1959 (3) SA 113 (A) at 120A and Ismail & others v Additional Magistrate, Wynberg & another 1963 (1) SA 1 (A) at 5G-6A, it was held that while a Superior Court had the inherent power to intervene in unterminated proceedings in an inferior court, the exercise of this power should be confined to rare cases where grave injustice might otherwise result or where justice might not by other means be attained.

[11] This test has been extended beyond criminal proceedings in inferior courts to civil cases in inferior courts and to disciplinary proceedings under administrative law. See Brock v SA Medical and Dental Council 1961(1) SA 319 at 324D. In Van Wyk v Director of Education & another 1974(1) SA 396 (N) at 400 the principle was applied in respect of disciplinary proceedings in the sphere of employment albeit under the Court’s inherent power to review administrative action¹.

[12] Accordingly, the Applicant argued that given jurisdiction, the power to grant an interdict or appropriate relief, the proper test to apply in respect of disciplinary proceedings is the one applied in Walhaus and Ismael. The facts in this case, so Mr Stelzener contended, constituted the kind of exceptional circumstances contemplated in Walhaus and Ismael.

The statutory basis for this Court’s jurisdiction

[13] Before engaging with each of the grounds of jurisdiction upon which this application is based, it is important to recognise that the Labour Court derives its jurisdiction from section 157. Section 157(1) states that the Labour Court has exclusive jurisdiction in all matters that are to be determined by it under the LRA or any other law. Section 157(2) confers jurisdiction on the Labour Court to hear a violation of a fundamental right in Chapter 2 of the Constitution arising from (a) employment or labour relations; (b) a dispute over the constitutionality of an executive or administrative act by the State in its capacity as employer; or (c) the application of any law for which the Minister of Labour is responsible.

[14] These are the four walls of this Court’s jurisdiction.

Ground 1: Right to fair procedure under the LRA

[15] Section 185 tersely states that ‘every employee has the right not to be unfairly dismissed’. It is, as the Constitutional Court has said in National Education, Health and Allied Workers Union v UCT 2003 (3) SA 1 (CC), the ‘foundation upon which the ensuing sections are erected’. It is clear that this right has two components: procedural fairness and substantive fairness. That is evident in section 188 (1)(a), which requires the employer to demonstrate a fair reason for dismissal and para (b), which regards a dismissal to be unfair if the employer fails to prove that it was effected in accordance with a fair procedure. Employees, accordingly, have the right to a fair procedure before they are dismissed. How that right is vindicated and the jurisdiction of this Court to do so is the central issue to be decided. But before moving there, it is necessary to deal with the right not be subjected to unfair labour practices in section 185(b).

[16] An unfair labour practice is defined in section 186(2). That definition is a closed definition. Unlike its predecessor in the 1958 Labour Relations Act, it is not open-ended. It is restricted to the practices listed. Those practices do not include an unfair act in the conduct of a disciplinary procedure. The listed unfair labour practice ‘involving suspension or any other unfair disciplinary action short of dismissal’ is clearly directed to the substantive fairness of the action and not the procedure.

[17] To return to the central issue, how is the right to a fair procedure to be vindicated? The operative jurisdictional provisions are contained in section 191 and 193. Section 191 goes to the subject matter of jurisdiction and section 193 to remedy.

[18] Section 191(5) determines the jurisdiction to arbitrate or adjudicate unfair dismissal disputes depending on the reason for the dismissal. So, for example, if the alleged reason concerns the conduct or capacity of the employee, the CCMA or a bargaining council with jurisdiction, must arbitrate the dispute. If the alleged reason is an automatically unfair reason or based on operational requirements or arising from an unprotected strike or the application of a closed shop, the Labour Court must adjudicate the dispute. It is the alleged reason that determines jurisdiction to determine the fairness, both substantive and procedural, of the dismissal. Jurisdiction in respect of procedural fairness follows the alleged reason.

[19] It follows therefore that only the CCMA or a bargaining council has jurisdiction to determine the procedural fairness of a dismissal for reasons relating to conduct. In so far as section 157(1) is concerned, it is quite clear from section 191(5) that this Court does not have the jurisdiction to determine the fairness of a disciplinary hearing into misconduct. There are two exceptions but they do not affect the thrust of the argument.

[20] Section 193(1) prescribes a closed list of remedies. The relevant provisions of which read as follows:

‘If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or arbitrator may-

1. order the employer to reinstate the employee…;

2. order the employer to re-employ the employee…; or

3. order the employer to pay compensation.’

Section 193(2)(d) states that the Labour Court or arbitrator may not reinstate or re-employ an employee if the dismissal is unfair only because the employer did not follow a fair procedure.

[21] It is important to compare this with section 193(4) which deals with the CCMA’s jurisdiction in respect of unfair labour practices. That section authorises an arbitrator to determine an unfair labour practice dispute ‘on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation’. It is quite clear that the remedies for unfair dismissal are not only specific but closed and the remedies for unfair labour practices are open-ended, but include the remedies of reinstatement, re-employment and compensation. Read together, the text is clear: the remedies for unfair dismissal are a closed list. But not only are the remedies a closed list, they are only triggered if the Court or the Commission finds that there is a dismissal and that it is unfair. Without a dismissal, there can be no remedy.

[22] So much for the text. But the LRA must be interpreted purposively. It is after all a statute that gives effect to a constitutional right – the right to fair labour practices in section 23(1). The focus of the right ‘is, broadly speaking, the relationship between the worker and the employer and the continuation of that relationship on terms that are fair to both’ – National Education, Health and Allied Workers Union v UCT at para 40. The Constitutional Court goes on to state that ‘in giving content to that right, it is important to bear in mind the tension between the interests of the workers and the interests of the employers which is inherent in labour relations. Care must therefore be taken to accommodate, where possible, these interests so as to arrive at the balance required by the concept of fair labour practices’ [at para 40]. The Constitutional Court then applied this approach to section 197 of the LRA and interpreted the section as one that not only gave expression to worker interests (work security) but also to employer interests (facilitation of the sale of businesses).

[23] The right to challenge the fairness of the employer’s decision to dismiss is a serious, though constitutionally justified, interference with the freedom to contract and to manage its business.

[24] This statutory interference with the right to terminate a contract is controversial. Although labour market economists are divided on the impact of unfair dismissal protection on employment, it is generally agreed that if there is to be such protection, it should be as light as possible. It is for that reason that the LRA provides-

• that dismissal disputes must be referred within 30 days,

• that dismissal disputes must first be conciliated,

• that most dismissal disputes not successfully conciliated be referred to arbitration (misconduct and incapacity dismissals),

• that the arbitration is conducted without pleadings, lawyers (as a rule) and rigid rules of evidence and procedures,

• that the arbitration hearing is meant to be expedited,

• reinstatement is the primary remedy and compensation is capped,

• reinstatement is not a remedy for procedural unfairness,

• that the arbitration award is not subject to appeal but limited to review only.

The object was to cut the transactional costs of imposing an unfair dismissal regime on employers. The object was to give employees protection against unfair dismissal at the least possible cost to the employer and to leave the decision to dismiss to the employer but give the employee the right to challenge the fairness of that decision before an independent arbitrator. Judicial oversight of the conduct of disciplinary proceedings while they are in process is costly, time consuming, disruptive and a duplication of proceedings. Intervention at this stage of the proceedings may prove to be unnecessary, as Mr Arendse (Counsel for the Respondents) submitted – the employee may not be dismissed or, however unfair the refusal of a postponement may seem at the moment, that unfairness may not constitute a sufficient basis for finding the procedure as a whole unfair when the commissioner arbitrates the dispute. The provisions erected on the right not to be unfairly dismissed constitute a careful balance between the interests of workers and employers and seeks to give expression to the right to fair labour practices – being fair to both employees and employers, namely sufficient protection at minimum cost.

[25] In Moropane v Gilbeys Distillers and Vintners (Pty) Ltd & another [1997] 10 BLLR 1320 (LC), Landman AJ (as he was then) approached the issue from the perspective of whether the employee enjoyed an independent right to procedural fairness enforceable by the Labour Court. He concluded that it did not. I associate myself with that reasoning in particular his description of the role of the Labour Court:

‘This Court is a creature of statute, albeit a superior court having the status and standing of the High Court with the, statutorily conferred, inherent powers of a High Court in within its jurisdiction. It does not have an all-embracing jurisdiction over the employer/employee relationship. Its jurisdiction is a sporadic one, interspersed in the life cycle of employment. Not only that but the moment of intervention is regulated by statute. Moreover its jurisdiction is sometimes indirect. It may supervise the activities of a council or the CCMA dealing with an aspect of the employment relationship but it does not necessarily mean that it may directly supervise the antecedent activities before a complaint is made and disposed of by the CCMA or a council.’ (at page 1323 F-H)

[26] There are however a line of cases that appear not to follow Moropane and hold that the Labour Court does have jurisdiction to intervene in unfinished disciplinary proceedings albeit only in the most exceptional circumstances. Three cases were cited by Mr Stelzener, counsel for the Applicant under this head: Mantzaris v University of Durban Westville & others (2000) 21 ILJ 1818 (LC); Molefe v Dihlabeng Local Municipality 92004) 25 ILJ 680 (O); and Jonker v Lkhahlamba Municipality & others (2005) 26 ILJ 782 (LC). In Mantzaris, the Applicant sought to review disciplinary proceedings and certain declaratory relief. Lyster AJ dismissed the application to review on several grounds – one of which was the jurisdictional bar decided in Moropane and the other was that an interdict was the more appropriate relief in the circumstances: ‘What limited rights such an aggrieved litigant may have regarding the course of his/her disciplinary hearing should be limited to interdict proceedings’. But if Moropane is correct, then there are no limited rights under the LRA to intervene in incomplete disciplinary hearings. The contradiction falls away if the reasons are read disjunctively. This then renders Mantzaris neither in support of the reasoning adopted in Moropane or against it. And to the extent that this reading of the judgement is not correct, I disagree with it because it is contradictory and focuses on the remedy rather than the right.

[27] In Jonker the Labour Court did no more than rely on what was implied in Mantzaris and in Molefe the High Court did not expressly deal with the issue of jurisdiction and assumed that the principle set out in Wahlhaus applied.

[28] The other cases relied on by Mr Stelzener involving intervention in incomplete disciplinary enquiries in the employment context were based on the breach of constitutional rights – a jurisdiction conferred under section 157(2). I deal with those judgements below.

[29] I accordingly hold that the Labour Court does not have jurisdiction based on section 157(1), read with section 185, to intervene in disciplinary proceedings.

Ground 2: Violation of the right to fair administrative action

[30] The relevant provisions of section 157(2) of the LRA confers jurisdiction on the Labour Court in respect of any alleged violation of a constitutional right arising from employment. The Applicant specifically relies on section 33 of the Constitution and the Promotion of Administrative Justice Act, 3 of 2000.

[31] In Chirwa v Transnet & other [2007] ZACC 23, the Constitutional Court decided the vexed issue as to whether an public sector employee had two causes of action – one under the right to fair labour practices under section 23(1) and another under the right to fair administrative action under section 33. The majority held that she did not. The ambit of the constitutional right to fair administrative action does not extend to employment decisions of a public sector employer. It follows from this reasoning that if there is no right to fair administrative action separate from the right to fair labour practices, there can be no ‘alleged or threatened violation’ of the right to fair administrative action – a requisite for jurisdiction under section 157(2).

[32] All the cases that Mr Stelzener cited in support of this ground have been surpassed by the decision in Chirwa. So in Van Wyk v Director of Education & another 1974(1) SA 396, the Supreme Court’s jurisdiction was founded on its inherent power to review quasi-judicial decisions of a statutorily established tribunal. It was also a case that preceded the unfair dismissal rights extended to public sector workers by the Public Service Labour Relations Act, 102 of 1993 and now by the 1995 LRA. Its reasoning is therefor susceptible to the same fate as the public service dismissal cases in the 1980s referred to and distinguished in Chirwa. In POPCRU v Minister of Correctional Services (1999) 20 ILJ 2416 (LC), the Labour Court founded its jurisdiction on the breach of the constitutional rights to a fair administrative action and access to information. In Mhlambi v Jatjhabeng Municipality & another 2003 (5) SA 89 (O), the High Court partly based its decision to intervene on the same two rights. In HS Oliver v Universiteit van Stellenbosch & andere², the Cape High Court intervened in the conduct of a disciplinary hearing, in particular the setting aside of a decision not to postpone the disciplinary hearing. The decision was partly based on the violation of constitutional rights to fair administrative action and access of information. These cases, too, founder on the approach adopted by the majority in Chirwa.

[33] Accordingly, the Labour Court has no jurisdiction under this ground.

Ground 3: The violation of the right to dignity

[34] The right to dignity is both a value and a right. As a foundational value in section 1 of the Constitution, it informs all the fundamental rights in the Constitution. See Minister of Home Affairs v National Institute for Crime Prevention [2004] ZACC 10; 2005 (3) SA 280 (CC) at para 21. As a right, its ambit is paradoxically limited. See Woolman & others in Constitutional Law of South Africa.

[35] In Dawood & another v Minister of Home Affairs & others [2000] ZACC 8; 2000 (3) SA 936 (CC), Judge O’Regan very pertinently pointed out:

Section 10…makes it plain that dignity is not only a value fundamental to our Constitution, it is a justifiable and enforceable right that must be respected and protected. In many cases however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour’ [at para 35]

The primary constitutional breach in this application is the right to fair labour practices.

[36] It follows that there is no independent right to dignity to violate for the purposes of section 157(2). So this ground must fail too.

Ground 4: The violation of the right to fair labour practices

[37] The right to fair labour practices is given effect to by the LRA and other labour legislation. Apart from challenges to the constitutionality or interpretation of that legislation or the development of the common law where there is no legislation, the right plays no other role and does not constitute a separate source for a cause of action. That is clear from the recent decision in SANDU v Minister of Defence & others [2007] 9 BLLR 785 (CC):

‘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 as falling short of the constitutional standard’. [at para 51]

[38] It follows then that the constitutional right and the legislation giving effect to it cannot be disaggregated unless of course the legislation or an interpretation of it is being specifically challenged. A violation of the right to fair procedure under the LRA does not constitute a separate and actionable violation of section 23(1).

[39] In both Mhlambi v Matjhabeng Municipality & another 2003 (5) SA 89 (O) and HS Oliver v Universiteit van Stellenbosch³, the High Court based their decisions partly on the violation of the right to fair labour practices. These cases were decided before the decision in SANDU and when the law on the issue was far from clear. It is now clear that a violation of the right to a fair labour practice cannot ground a separate cause of action for the purposes of section 157(2).

Ground 6: The inherent power to remedy injustice

[40] The final ground pressed on me was that this Court has an inherent power to correct injustices. It is difficult to read the Labour Relations Act as granting the Labour Court a roving power to correct any injustice outside of the specific areas in which it is given jurisdiction. One of the central reforms of the LRA was to turn its back on courts having an open-ended unfair labour practice jurisdiction to interfere in employer decisions. That is why the unfair labour practice has been codified and the jurisdiction of the courts limited in section 157(1) to the ‘matters that elsewhere in terms of this Act ... are to be determined by the Labour Court’.

[41] The argument under this ground was that under section 151(2) of the LRA the Labour Court is a superior court with the authority, inherent powers and standing equal to the High Court. The High Court, so the argument goes, has the inherent power to remedy injustices perpetrated by inferior courts and administrative tribunals and, in some instances, disciplinary bodies. Accordingly, the Labour Court has a similar power in respect of disciplinary proceedings. But this argument fails precisely because it confuses powers with jurisdiction.

[42] Section 151(2) is perfectly clear – the Labour Court has the inherent powers of the High Court but only ‘in relation to matters under its jurisdiction’. Its jurisdiction, as I have held, does not include interfering with disciplinary hearings.

[43] A similar argument was raised in respect of the power to grant an ‘order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of the Act’ in section 158(1)(a)(iii). This is a power, which may be exercised only if the Court has jurisdiction. Since I have held that the Court does not have jurisdiction to remedy a wrong in respect of disciplinary proceedings, this argument must fail too.

Costs

[44] The Courts have been divided on the issue of intervention in uncompleted disciplinary proceedings. This is the first time that the approach adopted by the majority in Chirwa v Transnet has been applied to the decisions that have permitted court intervention in disciplinary proceedings. This, together with the principle in the Labour Court that costs do not necessarily follow the result, I declined to make an order of costs against the Applicant.

Order

[45] The Application is dismissed each party to pay their own costs.

CHEADLE AJ

22 February 2008

Attorney for Applicant: van Dyk & Kie

Advocate for Applicant: Adv. R. Stelzner

Attorney for First and Second Respondent: The State Attorney

Advocates for Respondent: Adv. N. Arendse SC

Adv. B. Joseph

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