South Africa: Court's Intervention In Disciplinary Hearings: Justifiable Or Just Delay Tactics?

Last Updated: 11 July 2011
Article by Sipelelo Lityi and Daniel Breier

In law, jurisdiction is determined according to whether a particular court has the power or competence to hear and determine an issue between parties.

A recent decision of the Labour Appeal Court dealt with the issue of whether the Labour Court has jurisdiction to intervene in pending or incomplete disciplinary proceedings. The effect of this decision is that an employee facing disciplinary hearings may approach a court to prevent the hearing from taking place, but only in exceptional circumstances for instance to avoid a grave injustice.

In Booysen v The Minister of Safety and Security & others [2011] 1 BLLR 83 (LAC) the Labour Appeal Court was approached by Mr. Booysen, a Director in the South African Police Services. Booysen had been charged with fraud, corruption and perjury in July 2007 and was suspended without pay. The facts are complicated due to the numerous attempts by Booysen and his legal representative to apply for relief to both the Labour Court and the Cape High Court.

The main reason for Booysen's court applications was to challenge the fairness of the disciplinary hearing pending against him. The hearing was initially scheduled for August 2007, but had since been postponed on numerous occasions. Evidence had been submitted by medical professionals that Booysen suffered from post-traumatic stress disorder with an associated major stress disorder. The hearing had been repeatedly postponed after Booysen suffered a panic attack during the resumption of the hearing in October 2007. As a means to proceed with the hearing, the chairperson of the disciplinary committee then requested a medical report from an independent doctor of her own choosing to determine whether Booysen was mentally and physically fit to participate in the hearing.

In February 2008, after hearing all the medical evidence, the chairperson ruled that despite Booysen's medical condition, he was fit to participate in the hearing and that the hearing would continue. Having made this ruling, the chairperson ordered that the hearing would continue on 13 February 2008.

The day before the hearing was to resume, Booysen launched an urgent application in the Labour Court to have the hearing postponed, and to review and set aside the chairperson's ruling that he was fit to participate in the hearing. The Labour Court dismissed Booysen's urgent application on the grounds that it did not have jurisdiction to intervene in pending disciplinary proceedings.

Thereafter, Booysen sought the same relief and launched a second urgent application to the Cape High Court. The High Court also dismissed the application on the grounds that it did not have jurisdiction.

Booysen then took the decision of the Labour Court on appeal. The issue before the Labour Appeal Court was confined to the correctness of the Labour Court's finding that it did not have jurisdiction to intervene in pending disciplinary hearings.

In reaching its judgment, the court reasoned that the effect of the lower court's decision is that the court cannot come to the assistance of an employee before he or she has been dismissed. This would be the case even if the employee is in a situation where his or her pre-dismissal rights have been infringed or where there have been unfair labour practices. In such a case, a court would only be able grant relief after the fact. Whilst the court noted the argument that court intervention in pending disciplinary proceedings would be costly and time-consuming, it reasoned that possible future litigation to appeal the decision of the disciplinary committee could be prevented if the relief is granted at an early stage.

The court held that the Labour Court has jurisdiction to interdict any unfair conduct including a disciplinary action. The matter was remitted to the Labour Court for it to make a decision on the fairness of the pending disciplinary hearing against Booysen. The court added that such an intervention should only be exercised in exceptional cases. The court did not set out what it would consider exceptional circumstances. It did, however, mention that courts should consider whether a failure to intervene would result in a grave injustice or whether the employee could achieve justice by other means. We anticipate that future decisions of the Labour Court will provide guidance on how such matters should be dealt with. The courts are likely to adopt a strict test and avoid multiplicity of spurious challenges and delaying tactics.

Due to the peculiar circumstances of Booysen's case, the court did not make a finding on the merits. The court commented that it was remarkable that the matter had been ongoing for more than three years without the dispute relating to Booysen's actual misconduct ever being considered. Courts must not encourage delaying tactics used by employees, but a court is justified in granting employees relief against injustice before they face the humiliation of a possible dismissal. The question will always be whether exceptional circumstances exist to justify court intervention.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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