FORM A FILING SHEET FOR EASTERN CAPE JUDGMENT 023/2005 PARTIES: Van Eyk v Minister of Correctional Services & Others ECJ NO : REFERENCE NUMBERS - Registrar: 125/05 DATE HEARD: 31 March 2005 DATE DELIVERED: 20 April 2005 JUDGE(S): Jones J LEGAL REPRESENTATIVES - Appearances: for the State/Applicant(s)/Appellant(s): J Grogan for the accused/respondent(s): SH Cole Instructing attorneys: Applicant(s)/Appellant(s): Netteltons Respondent(s): Mlonyeni Inc.
2 Possibly reportable/of interest In the High Court of South Africa (Eastern Cape Division) Case No 125/05 Delivered: In the matter between MUNRO VAN EYK Applicant and MINISTER FOR CORRECTIONAL SERVICES 1 st Respondent NATIONAL COMMISSIONER FOR DEPARTMENT OF CORRECTIONAL SERVICES 2 nd Respondent ACTING PROVINCIAL COMMISSIONER OF DEPARTMENT OF CORRECTIONAL SERVICES NB KIVA 3 rd Respondent 4 th Respondent SUMMARY: Review of a decision of a disciplinary inquiry not to dismiss disciplinary proceedings on grounds of delay whether or not the delay in bringing disciplinary inquiry amounts to unfairness whether or not refusal of legal representation was in the circumstances grounds for review JUDGMENT JONES J: [1] The applicant is employed by the Department of Correctional Services. On 19 January 2005 he appeared before an internal disciplinary inquiry chaired by the 4 th respondent, also an employee of the Department, on charges of fraud. Before the commencement of the inquiry his attorneys wrote
3 to the Department requesting that he be allowed legal representation. This was refused. At the commencement of the inquiry he again applied for legal representation and raised an objection in limine. The document formulating the objection contended, first, that any disciplinary action that could have been taken against him had fallen away because it was not brought within the time frames laid down by a collective agreement under s 213 of the Labour Relations Act 66 of 1995. The agreement was referred to in the application papers as resolution 1 of 2001. In the course of making this objection reference was made to other disciplinary hearings where charges against employees of the first respondent were held to have lapsed because of delay in instituting proceedings. Second, the applicant s contention was that the inquiry could not proceed on the merits. In the event of the first objection being upheld, it could not proceed at all. If it were not upheld the inquiry also could not proceed because the applicant intended to bring a review application against that decision and against the decision not to allow him legal representation. The 4 th respondent dismissed the objection that the inquiry was barred by reason of the time frames of resolution 1 of 2001. With regard to legal representation, the 4 th respondent s affidavit explained that he had applied his mind to the issue, and had confirmed the previous ruling made by his department on the ground that no or insufficient facts had been placed before him to justify a departure from normal practice not to allow representation. He postponed the inquiry for hearing on the merits.
4 [2] The applicant then brought this application. On 9 February 2005 Mhlantla J issued a rule nisi calling upon the respondents to show cause why the 4 th respondent s decision to proceed with the disciplinary inquiry should not be reviewed and set aside. In the alternative and in the event of this rule not being confirmed, she issued a further rule calling upon the respondents to show cause why the 4 th respondent s decision not to allow legal representation should not be set aside, and why the 4 th respondent should not be directed to permit the applicant to be represented by a legal practitioner of his choice at the resumed inquiry. Additional orders were made staying the inquiry pending the return day, giving directions for the filing of further affidavits, and dealing with costs. [3] This is the return day of the rule. The respondents have opposed its confirmation. [4] The time frames for bringing disciplinary proceedings against employees are set out in paragraphs 7.1 and 7.4 of resolution 1 of 2001, the peremptory provisions of which are, it was common cause, binding on the parties (MEC: Department of Finance, Economic Affairs and Tourism (Northern Province) v Mahumani (2004) 25 ILJ 2311 para 3; Lloyd v CCMA and others [2001] 9 BLLR 1072 (LC)). The disciplinary process comprises an investigation followed by a hearing. Paragraphs 7.1 and 7.4 read:
5 7.1 An investigation should be finalized within two weeks from the date that an incident has come to the attention of the employer. If the time frame cannot be met, the parties must be informed accordingly with reasons for the delay. 7.4 The formal disciplinary hearing should be finalized within a period of 30 days from the date of finalization of the investigation. If the time frame cannot be met, the parties involved must be informed accordingly with reasons for the delay. If the employer, without good reason, fails to institute disciplinary proceedings within a period of 3 months after completion of the investigation, disciplinary action shall fall away. [5.1] There were two incidents which gave rise to disciplinary charges being brought against the applicant. The first occurred on 9 March 2002 and the second on 23 January 2003. The incidents were reported to the department s personnel supervisor. A preliminary investigation was conducted and a preliminary report was filed on 13 February 2003. It recommended that a formal investigation be done and that the matter be reported to the South African Police Services. Although senior members of the department might have been aware of the position before 13 February 2003, I shall regard that date as the date upon which the incidents were officially brought to the employer s attention. A formal investigation was then conducted by a Mr Skade who, on 10 April 2003, submitted a report to the department s head of resource management. The report contained conclusions and recommendations supported by witnesses statements and other documents. The recommendations were that the applicant be charged with defrauding the department;
6 that two of the clerks working under his supervision should also be held accountable; that the applicant be suspended for damaging the relationship of trust between him and his employer; that the area manager should seriously consider replacing the applicant and the two clerks; that either informal or formal disciplinary steps should be taken against the two clerks for their failure to report the applicant s conduct; that criminal charges be laid against the applicant. [5.2] The report was then placed before a Mr Marcus, who was the area manager of Correctional Services: St Albans, where the applicant was employed. His recommendations were different. On 23 April 2003 he endorsed a comment on the report that after evaluating the investigation he had come to the conclusion that a case of probable fraud be reported to the South African Police Services, that no departmental steps currently be taken concerning probable fraud but that the right to institute departmental steps be subject to the outcome of the police investigation, and that certain security steps be taken to prevent future occurrences of the alleged fraud. The applicant was advised of the outcome of these recommendations by a letter of the same date. [5.3] That is how matters stood until 30 November 2004 when the applicant
7 was called upon to attend a disciplinary hearing to be held on 18, 19 and 20 January 2005. This was more than 32 months after the occurrence of the first incident, 22 months after the occurrence of the second incident, and 18 months after 23 April 2003, when according to the applicant the investigation was finalized and submitted to Marcus for decision and action. [6] On the face of it, the time frames set out in paragraph 7.1 and 7.4 were not met and the peremptory provisions of those paragraphs should have been complied with and applied. The investigation was not finalized within two weeks from 13 February 2003 when the incidents came to the department s attention, and it became peremptory in terms of paragraph 7.1 for the employer to inform the applicant accordingly and to give reasons for the delay. This was not done. The hearing was not finalized within 30 days of the date upon which the employer finalized the investigation conducted by it, and it then became peremptory in terms of paragraph 7.4 for the employer to inform the applicant accordingly and to give reasons for the delay. This was also not done. The employer failed to institute disciplinary proceedings within 3 months after completion of the investigations conducted by it and, therefore, and in the absence of good reason for its failure, the disciplinary action fell away. It is the applicant s case that that is what has happened, and that the 4 th respondent had no alternative but to rule accordingly in terms of the peremptory provisions of paragraph 7.4. He argued that there was no good reason for the employer s failure to institute disciplinary proceedings. He was
8 not informed of any reason at all for this, let alone good reason as required by paragraph 7, and no good reason is to be found in the respondents affidavits. [7] The respondents answer is that the investigation was not completed. They alleged that the investigation was handed over to the South African Police Services on 23 April 2003, that the police have not yet completed their investigations, and that the employer is still awaiting the outcome. According to the respondents, the 30 day and 3 month period of paragraph 7.4 had not commenced to run by the time of the hearing. Indeed, because the police have not yet come back to them, the time periods have still not started to elapse. The investigation must still be regarded as ongoing. [8] The dispute between the parties about whether or not the investigation was finalized is not a dispute of fact which requires application of the rule in Plascon Evans Paints Ltd v Van Riebeeck Paints Ltd and another 1984 (3) SA 623 (A). There is no conflict on the facts of the case, but a difference between the parties about what to make of the facts and what inferences should be drawn from them. I am unable to accept the respondents contention that the proper inference is that the investigation has not yet been finalized. [9] In the first place, the objective facts and the probabilities point strongly to the conclusion that the investigation was completed by 23 April 2003. The
9 applicant was never informed, with reasons, that the investigation had not been completed in time, which is an indication that his seniors in the department, including those concerned with his case, considered that their investigation, at any rate, had been finalized. Skade did not ask for more time to investigate. He did not suggest in his report, and the respondents have not subsequently suggested, that there were further areas or issues which required investigation. The report annexed all the statements and documents which were available and obtainable. It was not as if the investigation needed some specialist police assistance like fingerprint or DNA analysis, or assistance in tracing a missing witness. Skade made the kind of recommendations which pre supposed and indeed accepted that he had finished his job. He recommended that positive action be taken as a result of his investigation in terms which made it clear that he regarded the investigation as having been satisfactorily concluded. His chief recommendations were twofold; disciplinary steps were to be taken against the applicant; and a criminal charge was to be laid against him. Marcus also did not call for further departmental investigations. He endorsed a decision on the investigation report to the effect that criminal charges be laid with the police but that, as things stood, no departmental hearing was justified on the present evidence. He left open the possibility of proceedings against the applicant in the future pending the outcome of the police investigations. By that stage, the department had done everything it could have done to conclude its investigation. The only purpose in waiting for a police
10 investigation was to hope that something might turn up during the police investigation. The facts and probabilities recounted above lead to only one probable conclusion: that the department s investigation had indeed been finalized. [10] Second, the above conclusion is not only the probable import of Skade s report and Marcus s endorsement. It accords with the wording of the disciplinary code. The finalization of investigations as required by paragraph 7 of resolution 1 of 2001 can on the plain meaning of the words only refer to the investigation mentioned in that regulation, namely the internal departmental investigation. It does not apply to another investigation being conducted by the police. There are no facts to suggest that a further ongoing departmental investigation was still in process. The respondents have not said that it was. They have confined their argument entirely to the police investigation. In all the circumstances the most probable inference from the facts is that the investigation referred to in resolution 1 of 2001 was concluded on 23 April 2001. [11] This leads to the third point. The respondent s argument conflates the internal investigation and the police investigation. It is, I believe, well recognized that an internal departmental investigation is entirely different and separate from a police investigation. To confuse the two is against principle. It results in a failure to appreciate that a criminal investigation and hearing has a
11 different emphasis and a different purpose from an internal or domestic investigation and hearing. The one has to do with proof of criminal offences, and with guilt, punishment and the legal policies which underscore them. The other is a civil matter with a civil standard of proof, and its chief concern is with damage to the relationship between employer and employee and whether or not that relationship can be maintained. It is generally accepted therefore that a departmental disciplinary hearing may be held even though criminal proceedings are pending. This distinction is expressly accepted and entrenched by the department in its policy guidelines document (annexure MVE 5) which says: If a person committed a criminal offence, a decision must be taken whether a disciplinary enquiry should be instituted according to the facts of each particular case. An employer may proceed with and complete a disciplinary hearing despite the fact that the employer has been charged criminally with an offence arising from the same incident. The fact that an employer laid a criminal charge against an employee does not prevent him from conducting a disciplinary enquiry, nor is an employer obliged to re instate an employee who is acquitted on a criminal charge. The conviction on a criminal charge may be used in a disciplinary hearing as evidence, but it is not desirable to wait for the outcome of criminal trials due to possible long time delays. In the light of this distinction the respondents cannot simply ignore their time constraints, which require promptness as an element of fair labour practice, by delegating their investigation to the police and thereby indefinitely extending their own investigation. This is especially so where they are prompted to do so by no more than a hope that something might emerge from
12 the parallel but independent investigation being conducted by the police. If this were permissible, provisions containing time limitations like those in resolution 1 of 2001 could be circumvented in every case where charges are laid with the police. [12] The above reasons come together in the last point, which I shall refer to as the Marcus inquiry. Mr Marcus was charged at a departmental hearing with what the department regarded as serious misconduct arising out of his handling of the applicant s case, and, in particular his decision not to bring disciplinary proceedings against the applicant within the times laid down by paragraph 7 of resolution 1 of 2001. The gravamen of the charge against him was that he had failed to institute disciplinary proceedings against the applicant within the 3 month period stipulated by paragraph 7.4, i.e. after the completion of the investigation against the applicant. During the course of those proceedings the department presented a case that the investigation against the applicant had been finalized, that it was no excuse for Marcus to rely on pending police investigations because these were clearly independent and separate from the department s investigations, and that the department was prejudiced by Marcus s maladministration, because in terms of paragraph 7.4 and from the mouth of the witness chosen to give evidence for the department, we have a period of three months to finalize the hearing, and if not, there should be reasons, otherwise that case [against the applicant] will go down the drain. Marcus was convicted. I am unable to understand how the
13 respondents, after putting up that case against Marcus and after securing his conviction on the strength of it, can put up a case on exactly the same facts that the investigation against the applicant was not finalized; that it is an acceptable excuse for the respondents to rely on a pending police investigation; and that the departments is not prejudiced, its case against the applicant not having gone down the drain for want of prosecuting it within the 3 month time period of paragraph 7.4 because the investigation was not yet complete. The facts found in one case need not bind a party to the same findings of fact within the same factual context in another but related case. But this is a case of a party attempting to make two mutually destructive cases out of exactly the same facts. That is something which justice, fairness and consistency do not permit in the context of disciplinary inquiries held in terms of Labour Relations Act No 66 of 1995 read with the Promotion of Administrative Justice Act No 3 of 2000. The outcome of the Marcus inquiry is convincing evidence that the respondents, as the senior managers in their department, knew all along that the investigation had been finalized. [13] I conclude therefore that the premise underlying the respondents argument is unsound. I conclude that the departmental investigation was not extended by reporting the matter to and laying charges with the police, and that it was finalized on 23 April 2003 when Marcus took the decision not to
14 pursue the matter departmentally at that stage. The respondents had a period of 3 months from 23 April 2003 to take their final decision. They could and should have done so irrespective of what the police investigation might reveal. They did not do so until after some 18 months had elapsed. In terms of the peremptory provisions of paragraph 7.4, disciplinary action against the appellant fell away unless there was good reason for the respondent s failure to institute disciplinary proceedings in time. The only reason that the respondents have advanced is that the matter was referred to the police for investigation and that the police have not yet completed their investigation. In terms of the department s own policy document this is not a good reason for delaying a disciplinary hearing. That document (annexure MVE 5) says that the decision [to institute a disciplinary enquiry] must be taken as soon as possible after the offence has been committed and that it is not desirable to wait for the outcome of criminal trials due to possible long time delays. The same applies to the outcome of criminal investigations such as this one, which also could involve long time delays. In any event, it is patently untenable for the respondents to argue, as they now do, that they could not bring proceedings until the police had completed their investigation. This is because on their own case they in fact did bring proceedings before the police had completed their investigations. They give no reason in their papers why they did not do so within the 3 month period. They did not have any information at their disposal when they gave notice of the hearing on 30 November 2003 which they did not have at their disposal on 23 April 2003 when the results of
15 the investigation were submitted to Marcus and he called in the police. The reason they now give for their failure to bring proceedings earlier does not make sense. It does not justify their conclusion. [14] A delay of more than 32 months after the occurrence of the first alleged offence, a delay of more than 22 months after the occurrence of the second, and a delay of more than 18 months after the conclusion of the investigation is on the face of it excessive, and in the absence of good cause, unreasonable. It makes nonsense of the principle which makes promptness an element of fair labour practice in taking disciplinary action against an employee. It is also an element of fair labour practice that discipline be applied consistently. In presenting his objection in limine `the 4 th respondent was invited to inspect the disciplinary records of 12 employees of the department where charges were withdrawn as a result of time lapses in instituting proceedings. The 4 th respondent did not accept the invitation. He made no attempt to call for and read the records in question, which were in the possession of the department, in order to acquaint himself with how disciplinary tribunals had in the past dealt with the issue of time lapses despite the fact that this was the issue pertinently facing him. He placed it beyond his power to apply a consistent standard or pattern. In my view he misdirected himself in this regard and that is a further ground for reviewing his decision. [15] I have therefore come to the conclusion that the 4 th respondent should
16 have ordered that the charges against the applicant had fallen away. His failure to do so must be reviewed and set aside. This makes it unnecessary for me to deal with the alternative portions of the rule nisi dealing with the issue of legal representation. For the sake of completeness I shall, however, state my conclusions on that issue. [16] The 4 th respondent denied that he fell into the trap of interpreting resolution 1 of 2002 as depriving him entirely of any discretion to allow legal misrepresentation (as to which see Mahumani s case supra, and Hamata and another v Chairperson, Peninsula Technicon Disciplinary and others (2002) 23 ILJ 1531 SCA). I do not believe it is proper for me to attempt to go behind that denial in application proceedings, and I accept that he applied his mind to the issue of legal proceedings in the respects set out in his opposing affidavit. But in doing so he misdirected himself by confining himself to the applicant s failure to motivate his application with reference to the complexities or otherwise of the alleged charges of fraud to be brought against him. On his own showing, he did not apply his mind at all to the need for legal representation for a proper ventilation of the issue of whether or not the charges against the applicant had fallen away. This was an issue of some complexity on which properly presented legal argument would have been of considerable assistance to him. If that issue had been considered, it would in this case have justified a departure from normal practice in not allowing representation by a lawyer. I consider that, viewed in this light, legal
17 representation was necessary for a procedurally fair hearing. In the circumstances I would therefore have confirmed paragraphs 1.2.1 and 1.2.2 of the rule, and ordered that the applicant is entitled to be represented by a legal practitioner of his choice at the resumed hearing. [17] Counsel argued that I should exercise my discretion on costs in this matter by making a punitive award of costs. I do not believe, however, that such an order is warranted. [18] There will the following order: 1. Paragraph 1.1 of the rule is confirmed, the 4 th respondents decision to proceed with the disciplinary steps against the applicant arising out of the payments made into his banking account on 14 March 2002 and 23 January 2003 is reviewed and set aside, and it is declared that such disciplinary action has fallen away. 2. The respondents are ordered to pay the taxed party and party costs of this application jointly and severally, the one paying the others to be absolved. RJW JONES Judge of the High Court 7 April 2005