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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

CASE NO: 478/03
Reportable
In the matter between
THE MEC: DEPARTMENT OF FINANCE, ECONOMIC
AFFAIRS AND TOURISM:
NORTHERN PROVINCE                                                APPELLANT

and

SCHOON GODWILLY MAHUMANI

RESPONDENT

CORAM: Streicher, Navsa, JJA and Jafta, Patel, Ponnan AJJA

HEARD:
8 November 2004

DELIVERED: 30 November 2004
Summary:  Presiding officer at disciplinary hearing of public servant- vested with
discretion to grant legal representation in terms of clause 7(3)e of the Disciplinary
Code applicable to public servants.

JUDGMENT

_____________________________________________________________________

PATEL AJA/…

PATEL AJA:

[1] The appellant, the MEC for Finance, Economic Affairs and
Tourism, with leave of the Johannesburg High Court, appeals against the
finding by that court that the respondent, Mr S G Mahumani, was entitled
to be legally represented at a disciplinary hearing.

[2] The respondent was employed by the Department of Finance,
Economic Affairs and Tourism, as a game reserve manager at the
Andover Game Park, Northern Province. On 4 June 2003 he was
suspended from his position on the ground, inter alia, that he was
implicated in the theft and disposal of five rhinoceroses from the reserve.
The appellant in due course initiated a disciplinary enquiry against the
respondent for misconduct. This enquiry was to take place before, Mr N S
Ratlabala (‘the presiding officer’), the second respondent in the court
below.

[3] At the commencement of the disciplinary hearing, the respondent
requested permission to be legally represented at the hearing.  The
presiding officer did not accede to this request.  His refusal was premised
on clause 7.3(e) of the Disciplinary Code and Procedures for the Public
Service (‘the Code’) embodied in Resolution No 2 of 1999 of the Public
Service Co-ordinating Bargaining Council which reads:
‘In a disciplinary hearing, neither the employer nor the employee may be
represented by a legal practitioner, unless the employee is a legal practitioner.
For the purposes of this agreement, a legal practitioner is defined as a person
who is admitted to practise as an advocate or an attorney in South Africa.’

Through collective bargaining in the Public Service Co-ordinating
Bargaining Council, the Code was agreed upon by the employer and
employee representatives in the public service.  In terms of s23 of the
Labour Relations Act 66 of 1995 (‘the LRA’), it became a legally binding

collective agreement and governed the disciplinary hearing of the
respondent.

[4] The presiding officer was of the view that s 7.3(e) did not repose in
him a discretion to grant legal representation.  He was fortified, he
believed, in this view, by the decision of Wallis AJ in the case of Mosena
and others v The Premier: Northern Province and Others case no 1401/
2000 an unreported judgement of the Labour Court.

[5] The respondent, not content with this ruling, brought an application
in the Johannesburg High Court to review and set aside the ruling of the
presiding officer. Pending that review application, the respondent
launched an urgent application to stay the disciplinary hearing. At the
hearing of that application, the parties agreed not to proceed with the
disciplinary enquiry until the finalisation of the review application.  The

costs of that application were reserved for determination at the hearing of
the review application.

[6] The presiding officer’s decision was reviewed and set aside by the
court a quo. It held that the respondent was entitled to be legally
represented at the disciplinary hearing and made the following order:
‘(1) The decision of the second respondent that the applicant is not entitled to
legal representation at the disciplinary enquiry is set aside.
(2) The applicant is permitted to be legally represented at the disciplinary
enquiry.
(3) That the respondents are to pay the costs of this review application jointly
and severally.
(4) The respondents are also to pay the reserved costs, jointly and severally, of
the application under case no 22171/2002 (per orders of court of 15 August
2002 paragraph 5) and of 22 August 2002 (paragraph 6).’

[7] Before us counsel for the appellant submitted that clause 7.3(e) of
the Code in express terms, excludes outside legal representation and that
it was not susceptible to an interpretation vesting a discretion in the
presiding officer to allow legal representation at a disciplinary hearing. In
this regard they relied on the judgment by Wallis AJ in the Mosena case.
[8] Clause 2 of the Code  provides:
‘2  The following principles inform the Code and Procedure and must inform
any decision to discipline an employee.
2.1 Discipline is a corrective measure and not a punitive one.
2.2 Discipline must be applied in a prompt, fair, consistent and progressive
manner.
2.3 Discipline is a management function.
2.4 A disciplinary code is necessary for the efficient delivery of service and
the fair treatment of public servants, and ensures that employees:
a. have a fair hearing in a formal or informal setting;
b. are timeously informed of allegations of misconduct made against
them;

c. receive written reasons for a decision taken; and
d. have the right to appeal against any decision.
2.5 As far as possible, disciplinary procedures shall take place in the place of
work and be understandable to all employees.
2.6 If an employee commits misconduct that is also a criminal offence, the
criminal procedure and the disciplinary procedure will continue as
separate and different proceedings.
2.7 Disciplinary proceedings do not replace or seek to imitate court
proceedings.
2.8 The Code and Procedures are guidelines and may be departed from in
appropriate circumstances.’

[9] In the Mosena case it was submitted that, in the light of clause 2.8,
clause 7.3(e) of the Code should not be construed as an absolute
prohibition against legal representation at a disciplinary hearing.  Wallis
AJ held that clause 2.8 is an injunction in regard to an employer’s general
approach to discipline and should not be interpreted as authorising

wholesale discretionary departures from the Code and procedures.  It
should be interpreted to only authorise departures where it would be
necessary by agreement or otherwise, to depart in some respect from the
strict terms of the procedure.  He found in clause 2.7, which provides that
disciplinary proceedings do not replace or imitate court proceedings, a
strong indication that the parties considered clause 7.3(e) to be a
fundamentally important portion of their agreement.

[10] I agree with Wallis AJ that clause 2.8 is an injunction as to the
general approach that should be followed.  I, furthermore agree,  that
clause 7.3(e) is a fundamentally important provision of the agreement and
that it should not lightly be departed from.  But, there may be
circumstances in which it would be unfair not to allow legal
representation (see Hamata and Another v Chairperson, Peninsula
Technickon Internal Discplinary Committe, and Others 2002 (5) SA 449
(SCA) at paras 12 and 13).

[11] In terms of our common law a person does not have an absolute
right to be legally represented before tribunals other than courts of law
(Dabner v SA Railways and Harbours 1920 AD 583 at 598; and Hamata
at para 5). However, it does require disciplinary proceedings to be fair
and if ‘in order to achieve such fairness in a particular case legal
representation may be necessary, a disciplinary body must be taken to
have been intended to have the power to allow it in the exercise of its
discretion unless, of course, it has plainly and unambiguously been
deprived of any such discretion’ (per Marais JA in Hamata at para 23).
The provisions of the Promotion of Adminstrative Justice Act 3 of 2000
in respect of administrative action in general corresponds with the
common law in respect of disciplinary proceedings.  Sections 3(1) and (3)
reads as follows:
‘3(1) Administrative action which materially and adversely affects the
rights or legitimate expectations of any person must be procedurally fair.

3(3)  In order to give effect to the right to procedurally fair administrative
action, an administrator may, in his or her or its discretion, also give a
person referred to in subsection (1) an opportunity to –
(a) obtain assistance and, in serious or complex cases, legal
representation;
(b)  present and dispute information and arguments; and
(c)  appear in person.’
In Hamata (at para 23) Marais JA found it unnecessary to decide whether
the bodies concerned were engaging in ‘administrative action’.  In the
present case it is similarly unnecessary to do so as it would make no
difference to the outcome of the matter.

[12] The parties, who agreed on the Code, were intent on devising a fair
procedure (see clause 2.4) and it is reasonable to assume that they also
knew that there may be circumstances in which it would be unfair not to
allow legal representation.  In these circumstances it is likely that they

would have intended the presiding officer to have a discretion to allow
legal representation in circumstances in which it would be unfair not to
do so. I can find no indication in the Code to the contrary. There is,
therefore, no justification for interpreting 'appropriate circumstances' in
clause 2.8 so as not to include circumstances, which would render it
unfair not to allow legal representation at a disciplinary enquiry.

[13] It follows that, if,  on a conspectus of all the circumstances it would
be unfair not to allow legal representation the provisions of clause 7.3(e)
may in terms of clause 2.8 be departed from. The presiding officer erred
in holding that he had no discretion to allow such a departure. The court a
quo, therefore, correctly reviewed his decision and set it aside.

[14] In the face of the failure by the presiding officer to exercise the
discretion which he had, this matter has to be referred back to him for
consideration. It is not for this court to exercise the discretion which is
reposited in the presiding officer unless there are good reasons for doing
so (see eg UWC and Others v MEC for Health and Social Services and
others 1998 (3) SA 124 (C) at 130J-131H). Counsel for the respondent
was not able to advance any good reasons other than to contend that the
respondent would be prejudiced by the delay occasioned by the referral
back to the presiding officer. Delay is a consideration to be taken into
account, but on the papers before us, there is insufficient information
upon which to exercise the discretion as to whether the circumstances of
the matter warrant a departure from the provisions of clause 7.3(e).
Although not a numerus clausus, this court in the Hamata case (at para

[21]) set out some of the factors which may be taken into consideration in
the exercise of such a discretion, namely: the nature of the charges
brought; the degree of factual or legal complexity attendant upon
considering the charges; potential seriousness of the consequences of an
adverse finding and the nature of the prejudice to the employer in
permitting legal representation.

[15] It will be for the presiding officer to apply his mind to the need for
legal representation after considering the circumstances of the case. The
matter therefore will of necessity have to be referred to the presiding
officer for him to exercise his discretion.

[16] I turn now to deal with the question of costs. Both parties achieved
a measure of success. It would, therefore, satisfy the dictates of justice if
both parties were ordered to bear their own legal costs in respect of the
review application in the court below and of this appeal ie if no order as
to costs is made in respect of the review application and this appeal.

[17] It was not disputed by the appellant that, in the absence of an
undertaking from the appellant, the interdict application was necessary in
order to stop the disciplinary hearing from proceeding. It is only fair that
the appellant be ordered to pay all costs consequent upon the bringing of
the interdict application.

[18] The following order is made:

1.
Save as is stated below, the appeal is dismissed.
2.
Paragraphs 2 and 3 of the order granted by the court a quo are set
aside and replaced by the following order:

'2.
The matter is referred back to the officer presiding at the
disciplinary enquiry of the applicant to exercise his discretion whether the
applicant is entitled to legal representation at his reconvened disciplinary
hearing.'
……………..
CN PATEL
Acting Judge of Appeal
Concur:
Streicher JA
Navsa JA
Jafta AJA
Ponnan AJA