THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Non-Reportable

Case no: J1219/16

In the matter between:

MATTHEW SESOKO Applicant

and

THE INDEPENDENT POLICE INVESTIGATIVE

DIRECTORATE Respondent

Heard: 23 June 2016

Delivered: 29 June 2016

Summary: Urgent application. Interdicting incomplete disciplinary hearing. The principles governing intervening in incomplete disciplinary hearing restated.

______________________________________________________________________

JUDGMENT

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MOLAHLEHI, J

Introduction

[1] The applicant in this urgent application seeks an interim order staying the

disciplinary proceedings instituted against him by the first respondent pending

the outcome of either the application to review and set aside the ruling issued

by the second respondent or the constitutional challenge of s 6 (4) of the

Independent Police Investigative Directorate Act (the IPID Act),1 filed with the

High Court, Gauteng Division: Pretoria (the High Court) under case number

4691. The review application is set out in part B of the notice of motion. The

application to stay the disciplinary proceedings is in part A of the notice of

motion.

[2] The ruling which the applicant seeks to review and set aside concerns the

dismissal of his application to have the disciplinary proceedings stayed pending

the outcome of the constitutional challenge of the validity of s 6(4) of the IPID

Act. The applicant also seeks to have the appointment of Mr Kgamanyane

(Kgamanyane), the acting Director of the second respondent set aside

consequent to the alleged invalidity of s 6(4) of the IPID Act. Kgamanyane is

responsible for instituting the disciplinary proceedings against the applicant.

Background facts

[3] The applicant who is currently on suspension is the Chief Director:

Investigations and Information Management, employed as such by the first

respondent. The first respondent is the Independent Police Investigative

Directorate (the IPID), a statutory body established in terms of the IPID Act. The

second respondent, Advocate Zondo, is the chairperson of the disciplinary

hearing appointed as such by the first respondent.

1 Act No 1 of 2011.

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[4] The applicant together with the suspended Executive Director of the IPID, Mr

McBride (McBride) and Mr Khuba (Khuba) were accused of wrongfully altering

the report into the alleged illegal rendition of Zimbabwean nationals during

November 2010 and January 2011. There were two reports concerning this

matter. The first report found Lieutenant General Dramat (Dramat), the erstwhile

head of Directorate for Priority Crimes Investigation (the DPCI), and Major-

General Sibiya (Sibiya) the provincial head of the DPCI: Gauteng to have been

involved in the alleged illegal renditions of the Zimbabwean nationals. The first

report which was signed by the applicant found Dramat and Sibiya to have been

involved in the alleged rendition of the Zimbabwean nationals. However, the

second report which was signed by the applicant, McBride and Khuba

exonerated them (Dramat and Sibiya) from any wrong doing in relation to that

matter.

[5] The Minister of Police (the Minister) had grave reservations about these two

contradictory reports. It would appear it was for that reason that he appointed a

private law firm, to conduct an investigation into the two reports. The applicant,

McBride and Khuba were consequently placed on precautionary suspension.

The three were subsequently charged with the same misconduct of allegedly

altering the report that had recommended that Dramat and Sibiya be charged

with the illegal rendition of the Zimbabwean nationals.2

[6] It is common cause that aggrieved by the charges against him, McBride

instituted proceedings in the High Court seeking an order declaring s 6(3)(a)

and 6(6) of the IPID Act, regulation 13 of the IPID Regulations, s 16A(1), 16B,

17(1) and (2) of the Public Service Act, paragraph 2.5, 2.6, 2.7(1) to (5) of

2 The charge against the three reads: “You (Sesoko), Khuba and McBride altered the report which had been handed over to the NPA, and deleted information incriminating Lieutenant General Anwa Dramat (“Dramat”) the formar National Head of the DPCI, and /or Sibiya, the Provincial Headof DPCI Gauteng, from the report in order to reach a conclusion that Dramat and Sibiya had been exenorated by IPID when you knew or ought to have known that the final IPID report of January 2014 recommended that Dramat and Sibiya be criminally charged.’’

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Chapter 7 and paragraph 18 to 19 of Chapter 8 of the SMS Handbook

constitutionally invalid. (the impugned provisions).

[7] The High Court found the impugned provisions unconstitutional but suspended

the ruling pending its confirmation by the Constitutional Court. It is apparent that

it was for this reason that the applicant brought the application to stay the

proceedings before the first chairperson of the disciplinary hearing. The first

chairperson of the disciplinary hearing recused himself from the proceedings

subsequent to reserving his decision regarding the application to stay the

proceedings.

[8] The same application was then brought before the second respondent on 6 May

2016. The second respondent dismissed the application and postponed the

proceedings to commence on 20 June 2016.

[9] At the beginning of the hearing, the parties agreed that, because all the relevant

papers were before this court, a final determination of the matter should be

made. The matter was found to be urgent and treated as such.

The case of the applicant

[10] The case of the applicant is that he is entitled to the relief for the following

reasons: The first reason is that the charges against him are the same as that of

McBride, whose case has been stayed pending the finalisation of the

constitutional challenge in the High Court. The source document used for

instituting the disciplinary proceedings in both instances is the same. The

document emanates from the report which was commissioned by the Minister

into the allegations of illegal rendition of the Zimbabwean nationals.

[11] The second reason is that McBride successfully challenged his suspension by

the Minister on the basis that the suspension and the initiation of the disciplinary

proceedings were done without the Parliamentary oversight. The challenge was

successful to the extent that the High Court had found that s 6(3) and s 6(6) of

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the IPID Act were in conflict with the Constitution. This finding has been referred

to the Constitutional Court for confirmation.

[12] The applicant contends that if the Constitutional Court was to confirm the

decision of the High Court, it would follow that it would be the Parliament and

not the Minister who has the power to suspend the head of the IPID. The

submission then draws from this conclusion that it would be the Parliament that

would have the power to appoint the acting head of IPID in circumstances

envisaged by s 6(4) of IPID Act. It would also be the Parliament that would

decide as to whether or not to charge McBride with misconduct. The same

would according to the applicant apply to the acting head of IPID.

[13] It was further contended, both in the founding affidavit and the heads of

argument, that there is a possibility that Parliament may decide not to pursue

the charges against McBride in which case that would amount to unjust

differentiated treatment between two employees. The other point made in this

regard is that the interest of justice and fairness supports the interruption of the

disciplinary proceedings pending the outcome of the referral of the confirmation

of the High Court decision.

Evaluation

[14] The approach to adopt when dealing with urgent interim relief is well established

and entails a determination of the existence/ non-existence of the following: (a) a

prima facie right even if it is open to some doubt; (b) a reasonable apprehension

of irreparable and imminent harm to the right if an interdict is not granted; (c) the

balance of convenience (which must favour the grant of the interdict) and (d)

other suitable remedies available to the applicant.

[15] The key question in this matter is whether the court should intervene and interdict

the disciplinary proceedings instituted against the applicant. The right of the

applicant in this matter has to be determined in the context of the disciplinary

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action that has already commenced, the pending review application and the

constitutional challenge in the High Court.

[16] The question of whether the Labour Court has the power to intervene in

incomplete disciplinary proceedings was clarified by the Labour Appeal Court,

per Tlaletsi DJP, in Booysen v Minister of Safety and Security and Others,3

where it was held that the Labour Court, as a general principle, has the power

to intervene in incomplete disciplinary hearings to ‘prevent a serious injustice.’ It

is, however, only in an exceptional case that the Labour Court will intervene in

incomplete disciplinary proceedings. The duty rests with the applicant to show

the existence of exceptional circumstances which would justify the intervention

by the court. The key consideration in determining whether to intervene in

incomplete disciplinary proceedings is ‘whether failure to intervene would lead

to grave injustice or whether justice might be attained by other means.’4

[17] In my view, the applicant has, for the reasons set out below, failed to make out

a case justifying intervention by this court in his current disciplinary

proceedings.

[18] It is clear from the earlier discussion in this judgment that the applicant basis his

case on the findings of the High Court in the McBride’s matter and the interdict

that he (McBride) obtained from this court.

[19] The case of McBride, which the applicant relies on in seeking to persuade this

court to intervene in his disciplinary hearing, is distinguishable from this case in

that, that case relates to the constitutional validity of s 6(3) and s 6(6) of the

IPID Act. The applicant on the other hand is challenging the validity of the

appointment of Kgamanyane as the acting head of IPID by the Minister, in

terms of s 6(4) of the Act. Section 6(4) of the IPID Act reads as follows:

‘( 4) When the Executive Director is unable to perform the functions of office,

or during a vacancy in the Directorate, the Minister may designate 3 [2011] 1 BLLR 83 (LAC). 4 Ibid at para 54.

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another person to act as Executive Director until the Executive Director

returns to perform the functions of office or the vacancy is filled.’

[20] The essence of McBride’s contention in the High Court was that the impugned

provisions of the Act do not contain sufficient safeguards of the independence

of Executive Director of IPID and IPID itself in that it allows the Minister to

suspend, discipline and dismiss the IPID executive director. Section 6 (3) of the

IPID Act reads as follows:

‘(3) In the event of an appointment being confirmed-

(a) the successful candidate is appointed to the office of Executive

Director subject to the laws governing the public service with

effect from a date agreed upon by such person and the Minister;

and

(b) such appointment is for a term of five years, which is renewable

for one additional term only.’

[21] And s 6 (6) of the IPID Act reads as follows:

(6) The Minister may, remove the Executive Director from office on account

of-

(a) misconduct;

(b) ill health; or

(c) inability to perform the duties of that office effectively.’

[22] The High Court, per Cathree-Setiloane, arrived at the conclusion that the

impugned provisions of the Act are unconstitutional on the basis that they

infringed the independence of the IPID. In dealing with the need to guarantee

the independence of the IPID the Learned Judge observed:

‘[55] It is imperative, therefore, that the suspension and removal from office of

the Executive Director be subject to parliamentary oversight through a

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veto power. This is necessary to accord with the findings of the

Constitutional Court in Glenister II and Helen Suzman Foundation and to

ensure public confidence in the independence of IPID. The Minister's

power to unilaterally suspend or remove the Executive Director poses

substantial risks to the independence of IPID and its ability to investigate

corruption and other abuses of power within the police service. An

Executive Director who constantly fears for his or her job will be less

inclined to carry out these responsibilities where this threatens to

embarrass or expose the Minister or other high-ranking politicians.

Furthermore, the absence of security of tenure undermines public faith in

IPID, as a reasonable person would have grounds to believe that IPID

lacks the independence to pursue its mandate vigorously.

[56] It is especially important that the Minister of Police does not have

unilateral power to suspend, discipline and remove the Executive Director

from office. Since IPID's function is to investigate complaints of

misconduct by members of the SAPS and to maintain effective oversight

over the SAPS, it is essential that IPID remains strictly independent of the

SAPS. This must include the Minister of Police, who is politically

responsible for the SAPS, and whose executive and political interests are

thus bound to the fate of the SAPS. As indicated, this was recognised by

the predecessor of IPID, the ICD.’

[23] At paragraph 59, the Court made the following findings:

‘[59] In the premises, I am of the view that sections 6(3)(a) and 6(6) of the IPD

Act, sections 16(A)1, 168, 17(1) and 17(2) of the Public Service Act and

Regulation 13 of the IPID Regulations, which renders the PSCBC Code

applicable in its entirety to the suspension and discipline of the Executive

Director of IPID, fall to be declared unconstitutional and invalid to the

extent that they purport to authorise the Minister of Police to unilaterally

suspend, discipline, and remove from office the Executive Director of

IPID, and accordingly do not provide for any parliamentary oversight in

the suspension and removal of the Executive Director. The cautionary

words of the Special Rapporteur bear mention:

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“Far too many external [oversight] mechanisms are not given the

investigatory powers, political support, human and financial

resources, powers of recommendation and follow-up, and financial

and operational independence from the executive and police

necessary to truly be effective. Without these basis elements, an

external agency will be little more than a paper tiger - set up as a

buffer to civilian complaints, but with no real impact on police

violence.

Unless the IPID Act is remedied legislatively, it risks becoming a

paper tiger, ineffective at combatting police corruption and other

forms of misconduct envisaged in the Act.”’

[24] It is clear that the High Court in McBride’s case dealt with the constitutional

validity of both s 6 (3) and s 6(6) of the IPID Act. In the present case, the

applicant is not challenging the constitutionality or the unlawfulness of his

disciplinary enquiry but the appointment of the acting executive director of IPID

by the Minister.

[25] The applicant further, in support of his case, relied on the urgent interdict which

McBride brought before this court on 23 July 2016 under case number

J1396/15. In that case, the court, per Basson, J interdicted the disciplinary

hearing against McBride pending the finalisation the constitutional challenge of

the impugned provisions of the IPID Act by the High Court.

[26] It is apparent from the reading of the judgment of that court that in arriving at the

conclusion, as it did, it was influenced significantly by the consideration of the

prospects of success in the constitutional challenge instituted by McBride in the

High Court. In this respect, the court found that the constitutional challenge bore

reasonable prospects of success. This as evinced for the reading of the

judgment, was the most significant consideration in the determination of

whether to grant or refuse the relief sought by McBride. At paragraph [20] of the

judgment, the Learned Judge says the following:

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‘[20] I have perused the heads of argument that have been filed on behalf of

the applicant in the constitutional challenge. I am of the view that the legal

basis for the contention that the Minister’s power to subject the applicant

to a disciplinary enquiry has reasonable prospects of success. The

applicant has therefore, in my view, succeeded in establishing a prima

facie right. Moreover, in the context of labour law the applicant has, at the

very least, a right to a lawful and fair disciplinary enquiry. Although I have

concluded that the applicant has a prima facie right to the relief sought,

the question still remains whether this constitutes exceptional

circumstances which warrant this Court to interfere in incomplete

disciplinary proceedings.’5

[27] In the present matter, the applicant makes no averment concerning prospects of

success in relation to both his constitutional challenge and the review application.

In the review application, the applicant sets out four grounds upon which his

review application is based on and they are as follows:

‘Ground 1 - Failure to allow the parties the right to the matter by way of oral

submissions.

Ground 2- failure to appreciate the evidence submitted by myself

Ground 3- failure to appreciate the constitutional context.

Ground 4- failure to deal with the heads set out in the application.’

[28] The first ground of review is based on the complaint that the second respondent

entertained the case of the first respondent despite the failure to file the

answering affidavit by the first respondent. It is also based on the contention

that the procedure which the second respondent adopted in determining the

applicant’s application is not provided for in the disciplinary code.

5 See also paragraph 18 where the learned judge says the following: ‘I have already indicated that the High Court has expressed the view that the applicant’s constitutional challenge against the Minister's unilateral disciplinary powers has reasonable prospect of success.’

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[29] The second ground is based on the complaint that the first respondent failed to

appreciate the evidence which was properly placed before him. The applicant

contends, in this regard, that the only version which was before the first

respondent was his and therefore he should have succeeded on an unopposed

basis.

[30] The third ground is that the first respondent ought to have granted the

application having found that the applicant had prospects of success in respect

of the constitutional challenge.

[31] The fourth ground is based the criticism that the second respondent failed to

take into account the issues raised in the heads of argument of the applicant

relating to; lack of independence of Kgamanyane in instituting the disciplinary

proceedings, the fact that the disciplinary proceedings are based on the SMS

Handbook and Regulation 13 which have been found to be unconstitutional,

and the nature and extent of the prejudice that the applicant was to suffer if the

stay of proceedings was not granted.

[32] The first respondent raised the issue of prospects of success in its answering

affidavit. In response thereto, the applicant simply states the following:

‘It is denied that my prospects in the review application as well as the

application before the High Court in Pretoria are too remote. In any event

this Court is not required to make such a determination.’

[33] It is to be noted that according to the earlier judgment of this court it is apparent

that McBride, in his case, set out in details the exceptional circumstances that

applied to his case and more importantly he set out the prospects of his success

in his constitutional challenge in the High Court. The Labour Court was as

indicated earlier influenced by that in considering the application to stay the

disciplinary proceedings.

[34] It is also important to note that the High Court declared as unlawful s 6(3) (a) of

the IPID Act and specifically in relation to its reference to ‘subject to the laws

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governing the public service’. The applicant does not say anywhere in his papers

that his position is not governed by the Public Service Act. The applicant’s

papers are furthermore, in relation to the issue of prospects of success, silent

about the materiality of the alleged failures of the second respondent in reaching

the conclusion as he did in the ruling he made.

[35] It is not the function of this court to determine either the review or the

constitutional validity of the impugned provision of the IPID Act. The two matters

are still to be determined by the appropriate fora. In light of this, it follows that in

determining whether there are exceptional circumstances justifying intervention

in the disciplinary proceedings, this court has to evaluate the prospects of

success either in the review application or the constitutional challenge in the High

Court.

[36] From the above discussion, I am of the view the applicant has failed to make out

a case justifying intervention in the incomplete disciplinary proceedings against

him.

[37] The case of the applicant is also not supported by the balance of convenience. In

assessing the balance of convenience in a case of this nature, account should be

taken that the court is invited to restrain the employer in an area where the power

to discipline employees is within its exclusive terrain. The assessment has to be

done also taking into account the need for speedy finalisation of disciplinary

proceedings and the availability of other suitable remedies provided for in the

labour legislation. The impact that the interdict would have on the speedy

finalisation of the disciplinary proceedings in particular having regard to the

prospects of success.

[38] The applicant contends that he will suffer prejudice if the interdict is not granted

because he will not be able to call McBride to testify in his favour. It is not clear

as to on what legal basis is McBride prohibited from testifying in the applicant’s

disciplinary hearing.

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[39] Turning to the issue of prejudice and harm, it is trite that for an applicant to obtain

an interim relief, such applicant has to demonstrate that he or she will suffer

irreparable harm if the interdict is not granted. In other words he or she has to

demonstrate absence of other suitable relief to the urgent relief sought. Put in

another way, availability of other suitable remedies is indicative of absence of

irreparable harm.

[40] In the present matter what needs to be considered is whether in the event the

applicant is found guilty and the sanction being imposed by the respondent is

severe, there would be no other suitable remedy in the Labour Relations Act (the

LRA)6 for him. There is no indication in the applicant’s papers that in case he is

found guilty, and assuming he is dismissed, why the provisions of s 191 of the

LRA would not provide adequate relief for him. I am thus not persuaded that

refusal to grant the interdict will result in irreparable harm on the applicant in the

event the chairperson of the disciplinary hearing was to impose a sanction of

dismissal. The same would apply if it was to be found, at some point in time, that

the treatment meted out to McBride is different to that of the employee. It should

be pointed out that it is now well established that inconsistency in discipline does

not automatically result unfairness. This is based on the jurisprudence that says

that inconsistency in disciplinary cases is not a rule of law but rather an element

of fairness which has to be determined based on the facts and the circumstances

of a given case.

[41] For the above reasons, I find that the applicant has failed to make out a case

justifying the relief sought under prayer A of the notice of motion.

[42] Turning to the issue of costs, I am mindful of the financial implication to the

applicant if costs are allowed to follow the results. However, the applicant had

legal assistance and should therefore have appreciated the consequences of not

satisfying the legal requirements of an application for an interim interdict. He thus

have himself to blame, he proceeded with his cause of action even after its

6 Act 66 of 1995.

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foundation was seriously challenged by the respondent in its answering affidavit.

I therefore see no reason why costs should not follow the results. I do not

however understand why the respondent engaged the services of two counsels.

The answering affidavit is at most sixteen pages and the heads of argument, with

double line spacing, is seven pages. Whilst I am mindful of the fact that this was

an urgent application, the matter was, in my respectful view, not complex to

warrant the use of two counsels. In any case, except for requesting that the costs

be on the basis of two counsels, such request was not substantiated, either in the

heads of argument or the oral submission made in that regard.

Order

[43] In the premises the applicant’s application is dismissed with costs, limited only to

one counsel of the first respondent.

________________

Molahlehi, J

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate B Ford

Instructed by: Thabiso Maseko Attorneys

For the Respondent: Advocate Mokhari, with Advocate Mokhatla

Instructed by: The State Attorney.