SWAZILAND
HIGH COURT
HELD
AT MBABANE
Civil
Case No. 3127/2004
In
the matter between
BERNARD
DLAMINI Applicant
And
THE
MUNICIPAL COUNCIL OF MBABANE Respondent
Coram
ANNANDALE, ACJ
For
Applicant Mr. Z.D. Jele
For
Respondent Mr. B, Sigwane
JUDGMENT
3rd December, 2004
BACKGROUND
2
On
a basis of urgency the applicant came to court, obtaining a rule nisi
on the 12th October 2004, under civil case number 3127/2004, in the
following terms:-
"3.
Declaring that the proceedings of the disciplinary hearing against
applicant, that commenced on the 7th October, 2004, are null and
void.
4.
Suspending the said disciplinary proceedings pending finalisation
hereof.
5.
Declaring the proceedings of the said tribunal irregular and ultra
vires the legislation governing respondent.
6.
Directing that any disciplinary hearing against applicant be
conducted by the Board in accordance, with the Urban Government
(staff) Regulations, 1968 (hereinafter referred to as "the
Regulations").
7.
Interdicting the respondent from carrying out the said disciplinary
(sic) pending the implementation of the recommendations of the
Commission of Enquiry into the affairs of the Municipal Council of
Mbabane, 2002, under Section 107 of the Urban Government Act, 1968."
(hereinafter referred to as "the Act".)
The
following day well before the initial return date of the 22nd
October, the court "dismissed" (or discharged) the rule
nisi, with costs, in an ex tempo re judgment.
In
his ex tempore ruling, the Honourable Mr. Justice Maphalala said as
follows, quoted from an (uncontested) transcript filed by the
erstwhile respondent's attorney, Mr. Jele.
"Mr.
Jele has raised a number of points of law in limine which are found
in his notice to raise points of law but of relevance are two points,
namely, that the Notice of Motion is defective and secondly, that the
applicant has not
3
followed
the provisions of Section 119 of the Urban Government Act No. 8 of
1969 and that the service was irregular in his case.... In reply Mr.
Jele raised further points, that of lack of jurisdiction and that of
failure to disclose all the relevant facts in the application. .I am
inclined to agree with Mr. Jele on his submissions that the rule nisi
granted by this court on the 12th October 2004 ought to be discharged
forthwith. Firstly the Notice of Motion is defective...Secondly, it
would appear to me that the applicant has failed to comply with the
provisions of the Urban Government Act. It would appear to me
further, that Mr. Jele is correct in his submissions as regards the
issues of jurisdiction and that of non-disclosure of material facts."
(The order on costs then follows).
It
was after this ruling of the 13th October 2004 that a further "urgent
application" was brought before myself on the following day, the
14th October. It is between the same parties and it bore the same
case number.
At
that time, Mr. Sigwane appeared for the same applicant and advanced
argument as to why the matter could not be taken to the same duty
judge as the previous day, informing me that the ex tempore ruling
centred around the defects in the previous notice, pertaining to
times and dates for filing of opposing papers, also regarding the
manner of service. He sought an order to:-
"3)
Suspend the disciplinary proceedings (against the applicant) pending
finalisation hereof;
4
4)
Call upon the respondent (Municipal Council of Mbabane) to show
cause why an order in the following terms should not be made final:-
4(a)
Declaring that the proceedings of the disciplinary hearing against
applicant, that commenced on the 7th October 2004, and purportedly to
be resumed on the 14th October 2004 at 09h00, are null and void.
4(b)
Declaring the proceedings of the said tribunal irregular and ultra
vires the legislation governing respondent;
4(c)
Directing that any disciplinary hearing against applicant be
conducted by the Board in accordance with the Urban Government
(staff) Regulations, 1968;
4(d)
Interdicting the respondent from carrying out the said disciplinary
(sic) pending the implementation of the recommendations of the
Commission of Inquiry into the affairs of Municipal Council of
Mbabane, 2002, under section 107 of the Urban Government Act, 1968;
and further or alternative relief." No costs order was prayed
for.
The
relief sought is substantially the same the second time round and the
applicant's attorney, Mr. Sigwane, persuaded me to order that the
disciplinary proceedings be suspended pending finalisation of the
application but without also ordering the further relief in the form
of a rule nisi. Directions regarding filing of opposing papers
etcetera were also made.
5
Again,
before the expiry of the latter periods, the respondent's attorney,
Mr. Jele, appeared the very next day, which resulted in a consent
order to firstly speed up the periods of time and to have argument
heard on the 20th October 2004, with interim costs to be paid by the
applicant, including costs resulting from the delay in the
disciplinary hearing to be carried by applicant, which included costs
of having to bring a South African witness back to Swaziland, should
the enquiry continue.
On
the 20th October when the time came to hear formal argument, the
applicant's attorney, Mr. Sigwane, was absent. With regard to the
chequered and complicated history of the matter, it having been
agreed to hear it then, the respondent's attorney, Mr. Jele, started
to argue as to why the application should be dismissed on the merits.
Mr.
Sigwane arrived later, at 10h40 , and was eventually also heard.
From
the onset, I made it clear that there is no possibility to prepare
this judgment soon, due to quite a number of factors that militated
against a timeous outcome, hence the delay herewith.
The
matter to be decided is thus the "second" application of
Dlamini, dated the 13th October 2004, not the initial application of
the 11th October.
THE
APPLICANT'S CASE
Briefly,
the applicant says that he is a building technician, employed by the
Mbabane Municipal Council. On the 4th October 2004 he was served with
a
6
notice
to inform him of a number of disciplinary charges which was to be
heard on the 7th October.
The
notice itself is incorporated in his papers and enumerates some
serious allegations against him, charges of dishonest acts, gross
misconduct, conflict of interest, corruption and such like. It states
that the Director of Public Works will preside as chairman and it
further informs him of his rights -inter alia to be represented by an
employee of the Council, to have adequate notice of the hearing, to
call witnesses and so forth.
He
further states that he attended the hearing on the 7th October and
requested a postponement until the 15th to prepare his defence but
that the postponement was only until the following day, the 8th,
although he has it that in terms of the regulations he is entitled to
a minimum period of 14 days to prepare his defence.
He
nevertheless duly attended on the 8th, but with his attorney, not a
fellow employee, to represent him. He says that his attorney would
not be given audience and was ordered to vacate the room, since he
was not a Council employee. No confirmatory affidavit of his attorney
was filed.
He
continues to state that he has no willing or able colleague to
represent him, nor any union to do so.
Due
to the above, he is apprehensive of the hearing being "...a mere
formality or guise calculated to validate a predetermined decision to
dismiss (him)."
7
He
contends that only the Municipal Board may institute disciplinary
proceedings, as per regulation 23 of the Urban Government (staff)
Regulations, 1968. He further contends that the tribunal is
constituted of management only, against the provisions of the Act and
subsidiary legislation and further that he was not given the
opportunity to make submissions, giving his side of the story.
Based
on his view of the Act and some ministerial directives regarding
implementation of recommendations of a commission of enquiry into the
affairs of the Mbabane Municipal Council in 2002, with the Council
still to determine its policy for presenting ventures which may give
rise to conflict of interest by its employees, the applicant has it
that the Council is estopped from dealing with the charges against
him until such time that it has implemented the commission's
recommendations.
He
then proceeds to state his reasons for urgency, namely that he has no
other remedy apart from a nullification of the bearing and an order
to adopt the recommendations of the Commission. Also, that the
hearing itself was ultra vires the powers of management, that he will
suffer irreparable harm and prejudice unless helped, as the offences
are punishable with summary dismissal. He says that the Council will
suffer no prejudice if the sought relief is ordered, since
implementation of the commission's recommendations "will enhance
the smooth operation of the respondent" and that the Board can
still hear his case, as it is empowered to do, hence the balance of
convenience in his favour.
8
In
short, he complains of an impingement and violation of his rights to
a fair hearing, a disregard of his claimed rights to legal
representation and his fear of victimisation and a desire of
management officials to have him dismissed.
THE
RESPONDENT'S CASE, IN LIMINE
In
limine, the Acting C.E.O. of the Municipal Council of Mbabane has it
that Section 8(1) of the Industrial Relations Act, 2000 (Act 1 of
2000) (the "I.R.A.") deprives the High Court of
jurisdiction to hear the matter. Also, that to again approach this
court for the relief notwithstanding the ruling of Maphalala J on the
13th October ".. .regarding the issue of jurisdiction which
constitutes an abuse of the court process".
He
further refers to "an identical application between the same
parties in 2001, which was dismissed by the High Court "on the
grounds that (it) did not have jurisdiction over the matter."
This, he says, was then accepted as correct by the applicant, as he
took his matter to the Industrial Court, stating that the previous
day, his application "was dismissed with costs for the sole
reason (that) the jurisdiction in such matters best (sic) exclusively
with (Industrial) Court."
It
is this change of heart of the applicant that the respondent now says
to be an abuse of the process of court and "downright callous",
so much so that on the application should be dismissed with costs on
a punitive scale.
The
applicant, understandably so, vigorously opposes these aspects,
stating that he had no choice but to go to the Industrial Court as
his "application was
9
mero
motu and erroneously summarily dismissed by the court without hearing
of any argument on the merits thereof," He further says that the
High Court has unlimited original jurisdiction and that Section 8(1)
of the I.R.A. of 2000 ousts the jurisdiction of the Industrial Court
in the matter raised in his application. He adds that his present
application is founded on a different set of facts, circumstances and
jurisprudence.
JURISDICTION
The
question as to which court has jurisdiction in a matter like the
present has vexed many a litigant, attorney and the courts at diverse
times in the past, yet the answer is straight forward and simple.
The
Industrial Court has its own jurisdiction limited to matters that are
properly before it - that is matters which are explicitly, by
statute, required to be determined by the Industrial Court. The
Industrial Relations Act (IRA) provides for conciliation of disputes,
the central role player being the Labour Commissioner. It is he, when
the process fails, refers the unresolved dispute to the Industrial
Court for adjudication, the disputes generally known as industrial or
trade disputes.
The
Industrial Court is the last part of call, so to speak, in the
determination of such disputes, referred to it by the commissioner.
Agreements of resolved disputes may be made orders of the court when
taken there. The I.R.A. lays down extensive procedures which are to
be followed before matters are referred to the court.
10
It is then when matters are properly before the Industrial Court.
This
is the essence of the ratio decidendi in the unreported judgment of
Dunn AJ in Donald C. Mills-Odoi v Elmond Computer systems (Pty) Ltd,
Civil Case No. 441/87, which is in line with the decision of the
Court of appeal of Botswana in Botswana Railways Organisation v J
Sebogo and 198 Others, Civil Appeal No. 51 of 1995.
Both
these decisions were cited with approval by the Swaziland Court of
Appeal in Sibongile Nxumalo and three others vs Attorney General and
two others, unreported Civil appeals 25, 30, 28 and 29 of 1996.
The
current Industrial Relations Act of 2000 has Section 8(1) which is of
the same genetic origins, by way of speech, as Section 5(1) of its
predecessor, the 1996 Act.
Section
5(1) of the 1996 Act reads:-
"The
court shall have exclusive jurisdiction to hear, determine and grant
appropriate relief in respect of any matter properly brought before,
it, including an application, claim or complaint or infringement of
any of the provisions of this Act, an Employment Act, a Workmen's
Compensation Act, or any other legislation which extends jurisdiction
to the court in respect of any matter which may arise at common law
between an employer and employee in the course of employment or
between an employer or employer's associations and an industry union,
between an employer's association, an industry staff association, a
federation and member thereof.
11
The
latter day version hereof, contained in Section 8(1) of the
Industrial Relations Act of 2000 reads:
"The
court shall, subject to Section 17 and 65, have exclusive
jurisdiction to hear, determine and grant any appropriate relief in
respect of an application, claim or complaint or infringement of any
of the provisions of this, the Employment Act, the Workmen's
Compensation Act, or any other legislation which extends jurisdiction
to the court, or in respect of any matter which may arise at common
law between an employer and employee in the course of employment or
between an employer or employer's association and a trade union, or
staff association or between an employees' association, a trade
union, a staff association, a federation and a member thereof."
The
references to Sections 17 and 65 are irrelevant for the present
purpose. The determining words still remain to be that exclusive
jurisdiction vests in the Industrial Court. ".. .in respect of
any matter which may arise at common law between an employer and
employee...".
I
am mindful of the various approaches to the interpretation of
legislation and the proper function of the courts when doing so, also
when it comes to determine whether jurisdiction is ousted or not. A
sane and proper approach was adumbrated by Lord Diplock of the House
of Lords in an unanimous decision in Duport Steels Ltd vs Sirs (1980)
1 All ER 529 at 541:
"...Parliament
makes the laws, the judiciary interprets them. When Parliament
legislates to remedy what the majority of its members at the time
perceive to be a defect or lacuna in the existing law .,., the role
of the judiciary is confined to ascertaining from the words that
Parliament has approved as expressing its intention, what that
intention was, and giving effect to it. Where the meaning of
12
the
statutory words is plain and unambiguous, it is not for the judges to
invent fancied ambiguities as an excuse for failing to give effect to
its plain meaning because they themselves consider that the
consequences of doing so would be inexpedient, or even unjust or
immoral. In controversial matters such as are involved in the
industrial relations there is room for differences of opinion as to
what is expedient, what is just and what is morally justifiable.
Under our constitution it is Parliament's opinion on these matters
that is paramount."
The
plain and simple meaning of the legislature was to endow the
Industrial Court, exclusively so, with jurisdiction to hear
industrial and labour issues, as is set out in Section 8(1)..
Equally
clear, plain and simple is that the revisional jurisdiction of the
High Court, to review administrative acts, remains unfettered. The
ousting of the inherent jurisdiction to review administrative acts
must be very explicitly clear in any legislation before it can be
said to have been removed from the High Court. For the Industrial
court to have exclusive jurisdiction in labour matters, however
broadly it may be interpreted, does not also include jurisdiction to
review administrative acts, or otherwise put, remove it from the High
Court. Neither the "old" Industrial Relations Act, nor the
present Act even remotely purports to do so, in my view.
The
Sibongile Nxumalo appeal case (supra), concerned the jurisdiction of
the High Court to hear claims for salaries allegedly unlawfully
withheld -whether Section 5(1) of the 1996 I.R. Act ousted its
jurisdiction or not. In the High Court, Sapire, ACJ, as he then was,
held that the Industrial Court was vested with exclusive
jurisdiction, "to the exclusion of all other courts", to
deal with "what may loosely be referred to as 'labour matters'
inelegantly
13
defined
in the section, where labour law would be applied. Broadly speaking,
labour law is to be understood as the common law of master and
servant as expanded and otherwise modified by Industrial
Legislation."
On
appeal, Tebbutt JA with Kotze JP and Browde JA concurring, said that;
"It
is a well known principle that has been emphasised time and again not
only in the courts of Southern Africa but also in courts in other
parts of the world where the judicial function, power and
independence is jealously guarded, that there is a strong presumption
against legislative interference with the jurisdiction of the
ordinary courts." (P.6)
After
a meticulous and clearly understandable analysis of the law and
applicable principles, the Appeal Court held that the position taken
in the High Court, mentioned above, which excluded jurisdiction to
hear matters arising from the common law of master and servant, was
incorrect.
The
court held that:-"(The Industrial Relations Act) ... confines
the Industrial Court's jurisdiction solely to those matters set out
in the Act, to those disputes which have run the gauntlet of the
disputes procedure, and to those issues arising from the other
legislation specifically set out in Section 5(1). Having regard to
the principle that in order to oust the jurisdiction of the ordinary
courts, it must be clear that the legislation intended to do so and
that any enactment which seeks to do so must be given a strict and
restricted construction, it is in my view, clear that save for the
specific provisions mentioned, Section 5(1) does not disturb the
common law of master and servant" (p. 15).
14
Nor
does the present Section 8(1) of the Industrial Relations Act of 2000
oust the jurisdiction of the High Court, in the present matter, as is
contended by the respondent. It is not in all matters that arise from
an employment relationship that exclusive jurisdiction falls with the
Industrial Court.
The
respondent holds the dismissal of the application in 2001 by the High
Court as an obstacle to the present matter, on the principle of stare
decisis. No judgment of the court in the contentious matter is
available. The applicant stated, as quoted above, that the court
"...mero moto ... summarily dismissed" it, "without
hearing any argument on the merits thereof." It is impossible to
consider the reasons for dismissal of the application where no
reasons for a judgment was given. To now want a repetition and worse,
to hold that matter as a decision to be slavishly followed, cannot be
countenanced. The stare decisis principle requires that it be known
for which reasons a particular course was followed. That this cannot
be so in casu, stands to reason - there are no known reasons why the
2001 application was dismissed, save that the apparent outcome was
said to be due to a finding of the absence of jurisdiction. To simply
follow suit blindly because this matter concerns an employment
relationship is tantamount to abandon/ship before entering the water.
When
the jurisdictional question is considered, I especially have regard
to the reason why the applicant needs to litigate in the first place.
The main relief that is sought is to require the respondent to
conduct a disciplinary hearing in accordance with the empowering
legislation that governs that matter. It is not a labour dispute as
such but a call for help to have a fair hearing, an administrative
action procedurally compliant with the regulations
15
made
under the Urban Government Act. As pointed out above, the
jurisdiction of the Industrial Court is narrowed down and limited by
the Industrial Relations Act. In my view, the relief which is sought
falls outside the ambit of the limited jurisdiction of the Industrial
Court and fits squarely within the inherent and unlimited revisional
jurisdiction of the High Court. To hold to the contrary would, in my
view, be akin to 'not seeing the trees for the forest' - otherwise
put, to forego the inherent jurisdiction of the High Court simply
because the term "disciplinary enquiry" is elevated to the
status of excluding jurisdiction.
The
present matter is not one that has run the gauntlet of disputes
procedure. Nor is it a matter as described in Section 8(1) of the
Act, falling within the other legislative directives. The procedural
correctness of a disciplinary enquiry, whether it is conducted within
the prescriptive legislated enactment or whether it is done
otherwise, certainly is a matter to be decided on by this court.
It
is therefore, for the abovestated reasons, that the point in limine
regarding jurisdiction stands to be dismissed.
The
further point in limine that was argued by Mr. Jele is that the court
should not interfere with internal disciplinary hearings. The
argument is that it should best be left alone until finalised and
only then, if so needed, can it be dealt with. Thus, should the
constitution of the tribunal be improper, it can be reviewed, or if
need be, a claim arising from unfair dismissal could be prosecuted.
16
As
authority to justify such a position, the respondent relies on (the
unreported) Industrial Appeal case of Swaziland Electricity Board
versus Mashwama Michael Bongani and 2 others, case no. 21/2000, dated
19th February 2001. That matter is quite distinguishable from the
present. There, the gist of the matter was recorded thus:-
"The
essence of the respondent's case ... (is that they) ... contended
that since the decision to institute disciplinary proceedings against
them arose directly out of the investigations and allegations of the
board of enquiry, it is extremely prejudicial and unfair to conduct a
disciplinary enquiry whilst the procedures of the Board are
themselves the subject of a commission of enquiry ... the relief
claimed is essentially a temporary interdict preventing the appellant
from continuing with the disciplinary enquiries until the commission
of enquiry has made its report to the Minister." (p5).
Sapire
JP went on to say:-
"In
the present case the appellant (S.E.B.) clearly has a right and even
a duty, where it suspects that an employees (sic) is guilty of
serious misconduct, to hold a disciplinary enquiry. The source of
information which gives rise to such suspicion is not material. In
the present case, such flaws there may have been in "the
procedures" of the board of enquiry, (as yet none have come to
light) cannot nullify evidence of misconduct on the part of the
respondents placed before the management of the appellant. Nor can
such flaws taint the evidence so as to make it so unreliable as to
make the need for a disciplinary enquiry unnecessary" (p 6).
The
court also said that:
"On
a number of occasions the court a quo has affirmed that it would not
interfere with management's right to hold a disciplinary hearing."
(p 8)
17
Cases
of the likes of the S.E.B. appeal supra stand on a different footing
as the present. There, it was held, correctly so with respect, that
it is the decision to hold or not hold an enquiry, that is best left
to management and not to be interfered with by the court. The reasons
why an enquiry is to be held, the sourcing and presentation of
evidence and the charges to be prosecuted remain within the domestic
domain of management.
The
Municipal Council also relies on the unreported decision of the
Industrial Court in Nhlanhla N. Dlamini vs Swaziland Development and
Savings Bank, Case No. 226/2002 dated 20 September 2002. the learned
Court President therein stated at page 4 that:-
"...I
affirmed the court's reluctance to interfere with management's right
to hold a disciplinary hearing. The court does not rule out such a
possibility though such eventuality would be an extreme rarity where
an employee is able to establish a competing right to that of the
employer to hold a disciplinary hearing. Proof of extreme vexatious
conduct on the part of the employer would suffice."
I
respectfully fully agree with this position. Yet, it is not the issue
at hand that a challenge is laid against the right to conduct a
disciplinary enquiry.
The
present matter differs significantly. The challenge is against the
procedure adopted by the tribunal, whether it follows the legislated
directives, the procedural legality of the tribunal and its
composition. The applicant seeks the tribunal and the enquiry itself
to be conducted within the provisions of the Urban Government (Staff)
Regulations, 1968, promulgated
18
under
the Urban Government Act. He has it that it would be ultra vires to
do otherwise, in the manner described by him in his complaint.
The
relief sought is not, as it is contended by the Council, to interfere
with its decision to hold an enquiry and the merits of reaching its
decision, as was the case in S.E.B. vs Mashwama and Dlamini vs SDSB,
supra.
This
point in limine can therefore also not be the cause to derail the
application, but it has a further impact, which is on the merits of a
part of the application itself.
The
applicant seeks in prayer 4(d) an interdict to prevent the Council
from carrying out the hearing until such time that recommendations of
a commission of enquiry has been implemented. This falls squarely
within the ambit of what is stated above, namely a reluctance to
interfere with the domestic decision of whether to conduct an enquiry
or not. Although Mr, Sigwane abandoned his quest for this part of the
relief during the hearing, it was for different reasons than those
above. It is for the reasons above that prayer 4(d) of the
application stands to be dismissed.
This
also disposes of having to deal with Mr. Jele's argument regarding
the requirements of an interdict, interim or final, in so far as it
pertains to the interdict sought in prayer 4(d).
The
remainder of the application now stands to be considered on the
merits, i.e. whether a declaratory order should be made to declare
the disciplinary hearing of the 7th October 2004 null and void, to
declare the proceedings of
19
the
tribunal ultra vires and to direct that the hearing be conducted in
accordance with the Regulations, or not.
The
Respondent's case on the merits
The
Municipal Council of Mbabane has it as a perspective of the whole
matter that it has a recognition agreement with the Union of
Swaziland Town Councils from which emerged an agreed variation of
staff standing orders, a disciplinary code and a grievance procedure.
It attached a letter from the former Minister of Housing and Urban
Development dated the 2nd December 1997 (annexure ASM4) which reads
in part:
"The
proposed staff standing orders submitted in terms of Section 51 read
with Section 16 of the Urban Government Act 8 of 1969 are hereby
approved as amended."
It
is this negotiated disciplinary code and procedure which the council
views as the applicable code governing discipline of the applicant,
contrary to the view of the applicant who has it that regulation 23
(sic) (as stated by respondent) under the Urban Government Act is the
applicable codified procedure.
Section
51 of the Urban Government Act, 1969 (Act 8 of 1969) is headed "Staff
regulations and standing orders." It empowers the Minister to
make "Staff Regulations" relating to inter alia, under
subsection (l)(d), "the regulation manner of and the procedure
for inquiries into conduct,"
20
Subsection
51 (2)(f) requires of every Council to make "Staff Standing
Orders" regarding the above in so far as they are not included
in any regulations made by the Minister. Such orders are subject to
the approval of the Minister.
The
Urban Government (Staff) Regulations of 1968 provides for the
Institution of disciplinary proceedings in regulation 21.
It
provides that if after due enquiry it appeals to a chief officer that
an officer has committed (an) offenee(s) against discipline he shall
inform the latter of the proceedings to be instituted, specify the
charge(s) and invite written submissions within fourteen days.
It
then provides for further procedures, thereafter, that when the chief
officer decides that disciplinary action is called for, to request
the Secretary to refer the case to the Board, to inquire into the
matter itself or to instruct the Secretary or other competent officer
to so inquire and report to the Board. At the inquiry, the officer
against who the disciplinary action is instituted has the right to
appear and to be heard and to cross examine witnesses. He may be
represented by another officer or in exceptional circumstances by a
lawyer. In the final analysis, it is the Board which is to decide on
an acquittal or otherwise, then to either dismiss or impose other
specified punishment.
Regulation
23 provides for a review of the Board's decision, by the Minister, by
way of petition. It is incorrectly referred to by the respondent in
its answering affidavit (paragraph 5) as being the regulation that
applicant
21
relies
on, and the applicant seemingly makes the same error in paragraph 9
of his founding affidavit.
Be
that as it may, the respondent differs from the applicant as to which
procedural regulations are to be used when an enquiry is to be held.
The amended procedure, referred to by council, was not given to the
court at the hearing, despite the council undertaking to do so. It
however furnished prima facie proof of the existence such
disciplinary code and procedure by way of the Minister's letter of
approval, dated 2 December 1997, This is almost a decade after the
Urban Government (Staff) Regulations of 1968, on which the applicant
bases his case.
In
his replying affidavit, the applicant disavows the 1997 regulations,
as was apparently approved by the Minister. He states that there is
no union activity at his workplace, wherefore, he submits, the
collective agreement has ceased to operate and as such, it is no
longer recognised in terms of the law. He requires "strict proof
by the respondent to prove the amended 1997 regulations.
No
basis is laid by the applicant as to why the negotiated collective
agreement, which he acknowledges, would now cease to exist. Nor does
he persuade me why a reverse onus vests in the council to prove the
terms of the collective agreement.
The
respondent raises a further pertinent issue. In his answering
affidavit, the acting CEO of the Municipal Council refers to a
judgment of the Industrial Court, delivered in February 2002, wherein
a previous application
22
between
the same parties in a similar issue was discussed. Similar relief was
sought by the applicant to stop a different disciplinary enquiry
against him, on the same grounds as presently. The respondent states
that:
"...When
the matter came before the Industrial Court on the previous occasion,
the Industrial Court did as a matter of fact find that the amended
staff regulations which include the disciplinary code and procedure
were in fact the ones that govern issues of employment including
discipline at the respondent's undertaking. No appeal was ever filed
against the decision of the Industrial Court and I am advised and
humbly submit that even in this present application, the applicant
has not made out a case which suggests that the decision of the
Industrial Court was incorrect." (paras. 6 and 7.1)
In
his founding affidavit, the applicant omitted any mention of the
earlier judgment of the Industrial Court. The respondent filed a copy
of that judgment. The applicant replies that the Industrial Court
"...dismally misdirected itself. An appeal, at the time, was out
of the question."
The
applicant fails to even tender an effort in explanation as to why he
did not inform this court, in the present application, of the reasons
why he omitted any reference to the earlier pronouncement of the
Industrial Court. He equally does not say why he did not appeal that
decision, which directly applies to his present matter, in that it
has already determined his position regarding the disciplinary
procedures and code. All he says is that "(the) unlawful
disciplinary proceedings would in the meantime be proceedings (sic)
and my appeal would have been overtaken by events viz the tribunal
would have long given its decision by the time the matter was
enrolled in court."
23
This
judgment he is dissatisfied with is dated the 15th February 2002. His
present application was brought on the 13th October 2004, well over
two years later. He cannot bring that judgment on review through the
backdoor. Nor did he use the long period since then to appeal against
it.
In
the judgment of the Industrial Court, in case No. 284/2001 between
the same litigants, the learned judge held that it is the staff
standing orders which included a disciplinary code and a grievance
procedure, approved on the 2nd December 1997 by the Minister, which
are applicable to an enquiry by the Council. It was further held that
"...there (is) no basis upon which applicant can rely on
Regulation 21(1) of the Urban Government (staff) Regulations, 1968.
Clearly Section 51 specifically deals with staff regulations and
standing orders of town councils and not town boards."
The
judgment therein determined the exact same relief as presently
sought, save that it concerned a disciplinary hearing set for the
11th October 2001, and not the 7th and 14tb October 2004. Then, he
wanted the enquiry to be held in compliance with regulation 21(1) of
the regulations, now he wants it again so, to be in accordance with
the Urban Government (Staff) regulations, 1968.
Both
because of the judgment of the Industrial Court, which has not been
overturned, and also because of the prima facie proof in the present
application that the Minister did indeed approve the amendment of the
orders in 1997, it seems to me that quite clearly, that it is those
orders which
24
are
to govern disciplinary proceedings by the council against the
applicant, and not the initial orders of 1968.
The
applicant's case is not based on a violation of the staff regulations
as amended in 1997, but is against non compliance with the earlier
regulations of 1968. If his case was an attack on the amended
regulations of 1997, and if it was meritorious, it would then have
been possible to consider the relief that he now seeks. But, as said,
it is not the position. There is no indication or motivation that
justifies an order to declare the present enquiry ultra vires, as it
is not known whether, the proceedings are contrary to the applicable
staff standing orders or not. Likewise, it is not shown that the
proceedings should be declared null and void, due to non compliance
with the 1968 orders, since it was overtaken in 1997 by an amended
version thereof.
It
is for these reasons that the application stands to be dismissed,
with costs. Costs as tendered on the 15th October 2004 are confirmed.
` JACOBUS
P. ANN AND ALE
ACTING
CHIEF JUSTICE
