Molibeli v The Speaker of the Municipal Council : Fezile Dabi District Municipality and Others (4614/2022) [2022] ZAFSHC 332; [2023] 1 All SA 199 (FB) (15 November 2022)

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[2022] ZAFSHC 332
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Molibeli v The Speaker of the Municipal Council : Fezile Dabi District Municipality and Others (4614/2022) [2022] ZAFSHC 332; [2023] 1 All SA 199 (FB) (15 November 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
no.: 4614/2022
REPORTABLE:
YES/NO
OF
INEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO OTHER MAGISTRATES: YES/NO
In
the application between:
MAMATEKETOA
LINDI
MOLIBELI
Applicant
and
THE
SPEAKER OF THE MUNICIPAL COUNCIL:
FEZILE
DABI DISTRICT
MUNICIPALITY
1
st
Respondent
THE
FEZILE DABI DISTRICT
MUNICIPALITY
2
nd
Respondent
THE
MEC: FREE STATE PROVINCIAL
GOVERNMENT:
DEPARTMENT OF
CO-OPERATIVE
GOVERNANCE AND
TRADITIONAL
AFFAIRS
3
rd
Respondent
CORAM:
VAN
ZYL, J
HEARD
ON:
14

OCTOBER 2022
DELIVERED
ON:
15
NOVEMBER 2022
1]
This is an urgent application in which
the applicant is seeking relief in the following terms:
"1.
The applicant's non-compliance with the rules of this court related
to time period and service is condoned and the
application is heard
as an urgent application in terms of Rule 6(12).
2.
The second respondent's Council
Resolution taken on 9 September 2022 and in terms of which the
applicant was suspended as the Municipal
Manager of the second
respondent, is declared unlawful and is set aside.
3.
The first and/or second respondents are
ordered to - consequent to the order granted in prayer 2 above -
allow the applicant to resume her duties
as Manager of the second respondent in all respects, and to allow her
to perform all her
executive and statutory functions.
4.
The first and second respondents are
ordered to pay the costs of this application."
2]
The application is being opposed by the
first and second respondents, to whom I will henceforth collectively
refer to as "the
Municipality".
Late
filing of the answering- and replying affidavits:
3]
In the notice of motion truncated time
periods were indicated for purposes of the filing of the answering
affidavit and the replying
affidavit, respectively.
The Municipality was unable to file its
answering affidavit within the aforesaid time-period and duly
advanced reasons in its answering
affidavit for its failure to have
done so.
The
applicant does not take issue with the late filing of the answering
affidavit.
In
fact, as a result of the late filing
of
the answering
affidavit,
the applicant
was
mutatis
mutandis
unable to file her replying
affidavit within the truncated time-period set in the notice of
motion.
She
duly dealt with this aspect in her replying affidavit.
4]
Since I was satisfied with the reasons
advanced by the parties for the late filing of their respective
affidavits, and moreover
because the parties do not take issue with
each other regarding the late filing, I consequently, at the
commencement of the hearing
of the application, granted condonation
for the late filing of the answering and replying affidavits
respectively.
Jurisdiction:
5]
The applicant duly dealt with the aspect
of jurisdiction of this court to hear the application in her founding
affidavit.
In
addition thereto, Mr Pienaar, who appeared on behalf of the
applicant, also dealt with this aspect in the heads of argument filed

on behalf of the applicant.
6]
At the commencement of the hearing, upon
my enquiry from Mr Rautenbach, who appeared on behalf of the
Municipality, he confirmed
that the issue of jurisdiction is not
being placed in dispute by the Municipality; in my view, correctly
so.
Background:
7]
The
applicant
is
the
Municipal
Manager
of
the
Fezile
Dabi District Municipality, the second
respondent.
8]
The first appointment
of the applicant as Municipal Manager of
the second respondent was in 2012, when she was appointed for a term
of five years.
During
2018, the applicant was again appointed as Municipal Manager for a
period of five years, ending on 30 November 2022.
9]
It is common cause between the parties
that the Local Government: Disciplinary Regulations for Senior
Managers, 2010, published
in Government Gazette no. 34213 of 21 April
2011, under Government Notice no. 344 ("the Disciplinary
Regulations") are
applicable to the applicant.
10]
The applicant was initially suspended on
1 August 2022 ("the first suspension"), when the Municipal
Council resolved to
place the applicant on precautionary suspension
in terms of Regulation 6 of the Disciplinary Regulations, pending a
disciplinary
process regarding alleged misconduct by the applicant.
11]
The applicant, at that stage, approached
court by means of an urgent application under case number 3834/2022
("the first urgent
application") to have the first
suspension declared unlawful
and
set aside due to the Municipal Council's
failure to have complied with the
Disciplinary Regulations.
Although
the Municipality initially opposed the application, it, after having
received legal advice, withdrew its opposition and
consented to an
order as prayed for by the applicant, which order was subsequently
granted by agreement between the parties on
31 August 2022.
12]
On 24 August 2022, after the parties
have agreed to the aforesaid order, although the order had not yet
been granted, the Municipality's
attorney addressed a letter to the
applicant's attorney in which letter the applicant was invited to
forthwith return to work in
her capacity as Municipal Manager. On
even date, 24 August 2022, the Speaker of the Municipal Council (the
first respondent) gave
notice that the "First Special Council
Meeting" of the Municipality was to be held on 29 August 2022.
[13]
During the aforesaid meeting of 29 August 2022 the Municipal Council
resolved,
inter alia,
that the allegations of misconduct
against the applicant are serious and merit investigation, that (in
principle) the applicant
was to be placed on precautionary suspension
with full pay, that the applicant was to be provided with an
opportunity to make written
presentations as to why she should not be
suspended and that the applicant be provided with a letter to advise
her accordingly.
[14]The
applicant duly submitted her written representations as to why she
should not be suspended in terms of Regulation 6(2) of
the
Disciplinary Regulations.
[15]On
6 September 2022 the Speaker gave notice that the "Second
Special Council Meeting" of the Municipal Council was
to be held
on 9 September 2022. During the said meeting of 9 September 2022 the
Municipal Council resolved,
inter a/ia,
to place the applicant
on precautionary suspension ("the present suspension") with
immediate effect pending an investigation
into the allegations of
misconduct by the applicant and to inform the applicant of the
Municipal Council's resolutions as soon
as possible after the
meeting. The applicant indeed received such a letter of suspension in
which she was advised accordingly.
16]
The applicant subsequently approached
court with the present urgent application.
17]
It is the applicant's case that her
suspension is unlawful and stands to be set aside due to the
Municipal Council's failure to
have properly complied with the
prescripts of Regulations 5 and 6 of the Disciplinary Regulations.
The.Municipality's contention is that
they duly or substantially complied with the Disciplinary Regulations
and that the applicant's
suspension
is
consequently lawful, with the result that the application stands to
be dismissed.
Urgency:
18]
According to the applicant she received
the letter of suspension on 13 September 2022.
This is confirmed by the return of
service in terms whereof the said letter was served upon the
applicant on 13 September 2022 at
18h00 by affixing a copy thereof to
the main gate of her residence, which return of service is attached
to the answering affidavit
as annexure "09".
According to the applicant a
consultation was immediately thereafter scheduled with counsel and
the application was drafted on 19
September 2022.
It is evident from the papers that the
founding affidavit was signed on 21 September 2022 and the
application was issued on even
date.
19]
In paragraph 90.2 of the answering
affidavit the following is stated:
"If
the applicant had attended to her workplace as she was required to
do, she would have been informed of the council resolution
on 9
September 2022 already and not on 13 September as she alleges - she
was absent without leave, yet again on 9 September 2022
"
However,
I have to remark that it is evident from the letter of suspension,
attached to the founding affidavit as annexure "LM9",
that
it is dated 12 September 2022 and that it was also only signed by the
Executive Mayor only on 12 September 2022. It is therefore
not
evident that the letter would have been ready and available at an
earlier date to provide to the applicant, even if she had
been at
work.
20]
In the answering affidavit the
Municipality also lamented the fact that the applicant only issued
the urgent application eight calendar
days after she had been
informed about her suspension, but provided the Municipality with
only five calendar days within which
to have delivered its answering
affidavit.
In
addition, the Municipality also dealt with the practical problems
they ensued since a meeting of the Municipal Council had to
be held
in order to decide whether the application should be opposed and to
nominate a person to depose to the answering affidavit.
Due to the Standing Rules and Orders
applicable to the Municipality which require a 48-hour notice period
for an urgent special
council meeting, the meeting only took place on
28 September 2022.
This
led to the Municipality's failure to have timeously filed its
answering affidavit. However, as already indicated, I granted

condonation for the said late filing of the answering affidavit.
21]
Rule 6(12) deals with urgent
applications and Rule 6(12)(b) has been amended to explicitly set out
the requirements for purposes
of an urgent application:
"In
every affidavit filed in support of any application under paragraph
(a) of this subrule, the applicant must set forth explicitly
the
circumstances which is [sic] averred render [sic] the matter urgent
and the reasons why the applicant claims that applicant
could not be
afforded substantial redress at the hearing in due course."
22]
The aforesaid amended wording of rule
6(12)(b) is in accordance with the requirements and principles
determined and applied in applicable
case law.
See
East
Rock Trading
7
(Pty) Ltd & Another v Eagle Valley Granite (Pty) Ltd
&
Others
(11/33767)
[2011]
ZAGPJHC
196
(23
September 2011) at paras [6] -
[7].
23]
In my view the applicant acted with the
necessary haste to bring this application before court after having
been informed of her
suspension.
24]
The applicant refers to the fact that
should she be forced to follow the normal time-periods in terms of
the Rules, read together
with the relevant Practice Directives, the
application will probably only be ripe for hearing towards the end of
November
2022.
The
applicant's
contract
and
her
appointment as Municipal Manager comes to an end on 30 November 2022.
She consequently contends that should
the application not be heard on an urgent basis and should the court
eventually find in favour
of the applicant, she will be armed with a
hollow victory.
I
have to agree with the applicant that in these circumstances she will
not be afforded substantial redress at a hearing in due
course.
25]
It has to be accepted that the
suspension prejudicially impacts on the applicant's freedom to work
and her dignity.
In
SA
Municipal Workers Union o.b.o.
Matola v Mbombela Local
Municipality
[2015] JOL 32540
(LC) at paras [29]
-
[31] the
court said the following in this regard:
"[29]
The harm that the applicant suffers pending the finalisation of the
disciplinary hearing is not financial because he
receives his salary
during the suspension. The irreparable harm that he suffers has to do
with his dignity and freedom to work.
The impact of the suspension on
the freedom to work and dignity of the suspended employee was stated
in
Minister of Home Affairs and others v Watchenuka,
in the
following terms:
'[27]
The freedom to engage in productive work - even where that is not
required in order to survive - is indeed an important component
of
human dignity, as submitted by the respondents' counsel, for mankind
is pre­  eminently a social species with an instinct
for
meaningful association. Self-esteem and the sense of self-worth - the
fulfilment of what it is to be human - is most often
bound up with
being accepted as socially useful.'
[30]
In
Muller
and others v Chairman of the Ministers' Council House of
Representatives and others,
where
the court held:
'The
implications of being barred from going to work and pursuing one's
chosen calling, and of being seen by the community round
one to be so
barred, are not so immediately realized by the outside observer and
appear, with respect, perhaps to have been underestimated
in the
Swart and Jacobs cases. There are indeed substantial social and
personal implications inherent in that aspect of suspension.
These
considerations weigh as heavily in South Africa as they do in other
countries.'
[31]
In light of the above, I find that the
applicant has satisfied the essential requirements of the claim set
out in his notice of
motion. In this respect, the applicant has
satisfied the requirements
of
urgency, a clear right, irreparable harm and the balance of
convenience
for
the granting
of
the urgent relief."
26]
In
Gigaba
v Minister of Police & Others
[2021] 3 All SA 495
(GP) at para [9]
the court found the violation of reputational dignity to have been a
factor which necessitated the urgent hearing
of an application
without which the applicant would not have been able to obtain
substantive redress in the ordinary course.
27]
It has previously been found that when a
senior manager is suspended, it equates an arrest.
In
South
African Municipal
Workers
Union o.b.o. Matola,
supra,
the court found as follows at para
[25] of the judgment:
"It
is apparent from the reading of the various judgments of this Court
that suspension is a serious matter which has serious
implications
for the employee. It is for this reason that suspension has been
equated to an arrest.
"
28]
In the circumstances I am satisfied that
the applicant made out a proper case for urgency and the consequent
granting of condonation
as requested in prayer 1 of the notice of
motion.
The
Disciplinary Regulations:
29]
As previously indicated, it is common
cause between the parties that all disciplinary steps, including
precautionary suspension,
which the Municipality instituted or intend
to institute against the applicant must comply with the Disciplinary
Regulations.
Failure
to do so would make any such step or action unlawful.
See
Biyase
v Sisonke District
Municipality
& Another
[2011] JOL 28131
(LC) at para [20].
30]
Regulation 5 deals with
"disciplinary
procedures"
and determines,
inter alia,
as
follows:
"5(1)
Any allegation of misconduct against a senior manager must be brought
to the attention of the Municipal Council.
2)
An allegation referred to in
sub-regulation (1) must be tabled by the Mayor or the Municipal
Manager, as the case may be, before
the Municipal Council not later
than seven [7] days after receipt thereof, failing which the Mayor
may request the Speaker to convene
a special council meeting within
seven [7] days to consider the said report.
3)
If the Municipal Council is satisfied
that -
(a)
there is a reasonable cause to believe
that an act of misconduct has been committed by the senior manager,
the Municipal Council
must within seven [7] days appoint an
independent investigator to
investigate
the allegation[s] of misconduct; and
(b)
there is no evidence to support the
allegation[s] of misconduct against the senior manager, the Municipal
Council must within seven
[7] days dismiss the allegation[s] of
misconduct.
4)
The investigator appointed in terms of
sub-regulation (3)(a) must, within a period of thirty [30] days of
his/her appointment, submit
a report with recommendations to the
Mayor or Municipal Manager, as the case may be.
5)
6)
7)
II
31]
The process for a
"precautionary
suspension"
is
prescribed in Regulation 6, which Regulation determines as follows:
"6(1)
The Municipal Council may suspend a senior manager on full pay if it
is alleged that the senior manager has committed
an act of
misconduct, where the Municipal Council has reason to believe that -
a)
the presence of the senior manager at
the workplace may-
(i)
jeopardise
any
investigation
into
the
alleged misconduct;
(ii)
endanger the well-being or safety of any
person or municipal property; or
(iii)
be detrimental
to stability in the municipality;
or
b)
the senior manager may -
(i)
interfere with potential witnesses; or
(ii)
commit further acts of misconduct.
2)
Before a senior manager may be
suspended,
he
or she must be given an opportunity
to
make a written representation to the Municipal
Council
why
he
or
she
should
not
be
suspended, within seven [7] days of
being notified of the council's decision to suspend him or her.
3)
The Municipal Council must consider any
representation submitted
to
it by the senior manager
within
seven [7] days.
4)
After having considered the matters set
out in sub-regulation (1), as well as the senior manager's
representations contemplated
in sub-regulation (2), the Municipal
Council may suspend the senior manager concerned.
5)
The Municipal Council must inform -
(a)
the senior manager in writing of the
reasons for his or her suspension on or before the date on which the
senior manager is suspended;
and
(b)
the Minister and the MEC responsible for
Local Government in the province where such suspension has taken
place, must be notified
in writing of such suspension and the reasons
for such within a period of seven [7] days after such suspension.
(6)(a)
If a senior manager is suspended, a
disciplinary hearing must· commence
within three months after the date of
suspension, failing which the suspension will automatically lapse.
(b)
The period of three months referred to
in paragraph (a) may not be extended by council."
The
first suspension:
32]
During a Municipal Council Meeting of 29
June 2022 the applicant was asked to leave the meeting and the
Executive Mayor presented
to the Municipal Council various
allegations of misconduct against the applicant.
The Municipal Council resolved to
appoint Councillor Matwa to report on the allegations made by the
Executive Mayor and submit a
written report to the Municipal Council
during its next meeting.
33]
During the next meeting of the Municipal
Council, which was held on 25 July 2022, the report of Councillor
Matwa was tabled.
The
applicant was again requested to leave the meeting whilst the report
was being discussed.
The
said meeting was postponed to continue on 1 August 2022.
34]
On 1 August 2022 the report was again
discussed and the Municipal Council took the decision to place the
applicant on precautionary
suspension.
35]
The applicant was advised by means of a
letter that the Municipal Council had unanimously resolved to suspend
her as a precautionary
measure. The said letter is dated 1 August
2022 and was signed by the Executive Mayor, which letter is attached
to the founding
affidavit as annexure "LM2" (the "first
suspension letter"). I will later herein return to the contents
of
this letter.
36]
The Municipal Council consequently
completely failed to comply with the provisions of Regulation 6(2) in
that the applicant was
not given an opportunity to make any
representation as to why she should not be suspended.
37]
It is also common cause between the
parties that Mr Matwa was not an independent investigator.
38]
As previously indicated, pursuant to the
first urgent application which the applicant instituted with regard
to the aforesaid process,
the
Municipality
conceded
the
irregularities
and agreed
to
an
order
to
have
the
first
suspension
declared unlawful and set aside.
The
present suspension:
A.
The resolutions of 29 August 2022:
39]
I have already pointed out that on the
very same day that the Municipality invited the applicant back to
work, 24 August 2022, notice
was given of the First Special Council
Meeting to take place on 29 August 2022.
40]
I deem it apposite, at this stage, to
set out the alleged acts of misconduct which were presented against
the applicant by the Executive
Mayor on the meetings of 29 June 2022,
25 July 2022 and 1 August 2022 and on which the first decision to
institute disciplinary
proceedings against the applicant, was based.
They were stated in the first suspension
letter, dated 1 August 2022, annexure "LM2", to have been
the following:
"1.
That the Municipal Manager failed to
comply with an instruction to refrain from any further appointments
or promotion of personnel
until such time as the planned Skills Audit
process is completed.
2.
That the Municipal Manager has failed to
provide the Executive Mayor with a written report regarding the
dismissed employees (
costs
implications, status of appeal process, legal costs incurred)
currently being appealed by the
Municipality and that failure to do so may place the Municipality
into an unwanted/unplanned financial
dilemma.
3.
That the Municipal Manager has failed to
carry out the instructions as resolved by council;
(a)
has failed to prepare and submit to
Council for consideration of the Language Policy;
(b)
has failed to administer the process for
the urgent establishment of the approved Section 79 Committee: Audit
and Performance Committee.
4.
The unauthorised absence from duty by
the Municipal Manager on 6 days during June 2022.
5.
As the custodian of Council records, the
Municipal Manager's apparent disregard for safeiy keeping in
archives, the recordings of
previous Council meetings.
6.
The use of security personnel of the
Municipality for the personal benefit of the Municipal Manager.
7.
That the Municipal Manager delayed the
replacement of the CFO, having known that the contract of the CFO
would be ending in June
2022 that has complicated the operational
efficiency of the municipality."
41]
In paragraph 32 of the answering
affidavit the Municipality stated that the aforesaid allegations of
misconduct
"remained serious and
some of the identified steps constituting misconduct are of a
continuous nature
...
and
therefore the council was again informed of the serious allegations
against the applicant at its meeting held on 29 August 2022".
42]
The Municipality attached the Index and
the Agenda for the meeting of 29 August 2022 to the answering
affidavit as annexure "05".
"Item 03"
on
the agenda was indicated to be the following:
"FEEDBACK
ON
DISCIPLINARY
PROCESS
OF
MUNICIPAL
MANAGER: MS L. MOLIBELI
(SPEAKER)
Item
will be circulated during the Council Meeting.
RECOMMENDATION
For
consideration by Council."
43]
In paragraph 35 of the answering
affidavit the following is stated:
"35.
The item/report that was prepared to inform the councillors of the
aspects of the disciplinary enquiry to be considered
against the
Municipal Manager was circulated at the meeting and I append a copy
thereof hereto as annexure '06'.
36.
The council considered the said '06' and ultimately took the
resolution on 29 August 2022 to place the applicant on precautionary

suspension, of which resolution a copy is appended hereto as annexure
'07'."
44]
As correctly pointed out by the
applicant in her replying affidavit, annexure "06'' consists of
two documents.
The
one document bears the heading
"ITEM
03",
which is clearly a
reference to the item number
on the
agenda.
This
document is titled
"REPORT
ON THE LEGAL I LITIGATION 'NOTICE
OF MOTION' BY MS M.L.
MOLIBELi II THE SPEAKER OF
FDDM
AND
FEZILE
DABI
DISTRICT
MUNICIPALITY COUNCIL
AND
THREE OTHERS"
and underneath the heading the
words
"(The Office of the
Speaker)"
are
noted. The said report consists of two pages and deals with the first
suspension of the applicant and her subsequent challenge
thereof
by
means
of
the
first
urgent
application.
The
report
further indicates that although the Municipality initially intended
opposing the application, subsequent to consultation
with legal
experts,
"the Speaker and the
Executive Mayor agreed with the advice"
that
its processes and decisions did not meet all the requirements of the
Disciplinary Regulations. Therefore, and in order to avoid
any
further unnecessary legal costs, it was agreed that the decision to
suspend the applicant be set aside and that the Municipal
Manager be
required to take up her position as Municipal Manager. The report
concludes as follows:
"RECOMMENDATIONS
:
1.
It is recommended that Council take note
of the actions taken by the Speaker of Council and the Executive
Mayor to resolve the legal
matter.
2.
It is recommended that the Council
condone the actions taken by the Speaker of Council."
45]
There is nothing untoward about the
aforesaid report.
It
only dealt with the first suspension of the applicant and feedback on
the subsequent legal process and basically sought the ratification
of
the decisions by the Executive Mayor and the Speaker to have conceded
the merits of the first urgent application. The resolution
taken by
the Municipal Council as a result of this report is reflected in
paragraphs 1 and 2 of the minutes of the meeting, attached
to the
answering affidavit as annexure "07", to have been the
following:
"RESOLVED
1.
The Council take [sic] note of the
actions taken by the Speaker of Council ... and the Executive Mayor
...
to
resolve the legal matter.
2.
The Council condone [sic] the actions
taken by the Speaker of Council."
46]
What is of utmost importantance about
this report, is that it is evident from the contents thereof that it
clearly constituted the
document/item which was referred to in Item
03 of the agenda. This is confirmed by the fact that the agenda
specifically made provision
for "recommendation" and the
said report also concludes with "recommendations". In my
view, this report was
therefore intended to and did in fact take care
of and concluded Item 03 on the agenda.
47]
The second document which forms part of
annexure "06", I will deal extensively with hereinafter.
The crux of the matter
is that the nature and contents thereof do not
fall within the ambit of the description of Item 3 on the agenda. It
cannot be considered
to have been any form of
"feedback',
as it does not deal with any
previous or past process or events, like the abovementioned report
did. It deals with a completely
new disciplinary process against the
applicant. On the Municipality's own version it
"was
prepared to inform the councillors of the aspects of the disciplinary
enquiry to be considered against'
the applicant.
48]
Consequently,
and as correctly stated in paragraph 32
of the applicant's replying affidavit, the consideration and
discussion of
the
new
disciplinary
process
against
the
applicant
and consequently the allegations of
misconduct against her and her precautionary suspension were not
included in the agenda for
the said meeting.
49]
Rule 45 in Part 8 of Chapter 2 of the
Standard Rules and Orders, which the Municipality has to comply with,
attached to the founding
affidavit as annexure "LM10",
determine,
inter alia,
as
follows:
"Only
matters included in the agenda are dealt with:
45(1)
Subject to the provisions of sub-rules (2) and (5) only matters
included in an agenda for a meeting may be dealt with.
(2)
A councillor may at any time during a meeting propose that sub-rule
(1) be suspended to allow a discussion of any
matter not included in
the agenda and must give reasons for his or her proposal.
(3)
(4)
(5)
"
50]
It is not the Municipality's case that
the consideration and discussion of the allegations of misconduct
against the applicant and
her precautionary suspension were allowed
in terms of Rule 45(2).
I
consequently have to agree with the contention by the applicant
contained in paragraph 33 of her replying affidavit that the
Municipal Council was therefore not entitled to have dealt in any
manner whatsoever with the new disciplinary process against the

applicant during the meeting of 29 August 2022.
51]
The totality of the resolutions taken by
the Municipal Council during the meeting of 29 August 2022, as
reflected in annexure "07"
to the answering affidavit, with
the exclusion of paragraphs 1 and 2 thereof, are therefore, in my
view, unlawful.
52]
It follows
ex
lege
that the subsequent actions
and/or decisions taken by and/or on behalf of the Municipality with
regard to the disciplinary process
against the applicant on the basis
of the decisions taken in this regard during the meeting of 29 August
2022, including the decision
of 9 September 2022 to suspend the
applicant, are
mutatis mutandis
unlawful and
void
ab initio.
53]
Based on this finding alone, the
application stands to be granted in favour of the applicant. However,
should I be wrong in my finding
in this regard, and also due to the
importance of this matter to both parties and the fact that the
Municipality is a public entity,
I deem it necessary to also deal
with the further issues regarding the merits of the application.
54]
I will now deal with the second document
which forms part of annexure "06'' ("the annexure
"06"-document")
which, according to the Municipality,
"was
prepared to inform the
councillors of the aspects of the disciplinary enquiry to be
considered against"the
applicant,
which "was
circulated at the
meeting"
and which
"the
council considered''
and
"ultimately
took the resolution on 29 August 2022 to place the applicant on
precautionary suspension, of which resolution
a
copy is appended hereto
as
annexure
'07"'.
55]
Although I dearly realise the prolixity
of the process I am about to embark on, I unfortunately deem it
essential to quote substantial
parts of some of the documents to
which I will henceforth be referring.
56]
The annexure "06"-document
reads as follows (emphasis added by myself):
"FEZILE
DABI MUNICIPAL COUNCIL MEETING
MONDAY 29 AUGUST 2022
THE
EXECUTIVE MAYOR TABLES THE FOLLOWING:
1.
The Municipal Council
already
took notice on 1 August 2022 of the allegations of misconduct
against
the Municipal Manager, Ms. ML Molibeli ("the MM"). Those
allegations of misconduct
are again
herewith tabled
by the Mayor, such
allegations being:
1.1
That the MM has failed to comply with an
instruction to refrain from any further appointments or promotion of
personnel until the
Skills Audit process undertaken by the
Municipality is completed.
1.2
That the MM has failed to provide the
Executive Mayor with a written report pertaining to dismissed
employees and in the absence
of a report which should have set out
the cost implications, the status of the appeal process and the legal
costs incurred so far,
the Municipality is placed in jeopardy where
it may face unplanned financial distress.
1.3
That the MM has failed to comply with
instructions from the Municipal Council in that the MM failed to
prepare and submit a language
policy to the council and the MM failed
to administer the process for the urgent establishment of a section
79 committee dealing
with audit and performance matters.
1.4
That the MM was absent from duty for a
period of six days during June 2022 without authorisation.
1.5
That the MM failed to safely keep
archives and recordings of previous council meetings, which
jeopardises or may jeopardise the
record-keeping of council which is
of paramount importance for the effective administration of a
Municipality.
1.6
That the MM used security personnel of
the Municipality for the MM's personal benefit.
1.7
That the MM failed to deal with the
appointment/replacement of the Chief Financial Officer timeously
whilst knowing that the contract
of the current Chief Financial
Officer would have terminated by the end of June 2022 and such
failure impacted upon the operational
efficiency of the Municipality.
2.
Council again, as on 1 August 2022,
resolves that these allegations are
serious and merit investigation.
The
decision of 1 August 2022 is therefore re-confirmed, since no
further representations or facts
have come to the knowledge of council and/or the Executive Mayor
which does not merit further investigation.
3.
Council furthermore resolves that an
independent investigation based on reasonable cause that the MM has
committed an act or
acts
of
misconduct
as
municipal
manager,
is
herewith instituted.
4.
Council appoints Adv. Jerry Merabi from
the Free State Society of Advocates, as the independent investigator,
to conduct such investigation
necessary which would enable him to
submit a report with recommendations to the Mayor within 30 days of
his appointment.
5.
Council furthermore resolves to place
the MM on precautionary suspension with full pay since the Municipal
Council has
reason
to believe that: -
5.1
the MM's presence as the Municipal
Manager at the municipal administrative offices may jeopardise
further investigation into the
MM's alleged misconduct, since
the MM as the Head of the Administration
has access to all and any relevant documentation which may be
required to be secured in
order to complete the investigation into
the allegations
of
misconduct.
5.2
The MM's continues presence at the
municipal offices will be detrimental to the stability of the
Municipality and that the MM may
interfere with potential witnesses,
seeing that the MM are the Head of the Administration and the
accounting officer of the municipality,
to whom many of the potential
witnesses report either directly or indirectly.
6.
The MM will forthwith be provided of a
letter
confirming its decision to
place her on precautionary suspension,
also
providing her with the opportunity to make written representation to
the Executive Mayor, who shall report the MM's submissions
to the Municipal Council on the reasons
why the
MM
should
not
be
suspended.
The
MM's
written representation must be received
by the office of the Executive Mayor within 7 (seven) days from date
of receipt of this
letter."
57]
The
"resolution"
to which the municipality refers in
its answering affidavit and which the municipality attached to its
answering affidavit as annexure
"07", appears to be an
extract of the minutes of the said Special Council Meeting of 29
August 2022.
The
heading thereof reads as follows:
"ITEM
03
REPORT
ON ALLEGATION OF MISCONDUCT BY THE MUNICIPAL
MANAGER,
Ms
M.L
.
MOLIBELI
IN
LINE
WITH
THE
LOCAL
GOVERNMENT:
DISCPLINARY
REGULATIONS
FOR
SENIOR
MANAGERS"
The
minutes then contains a secondary heading which reads
"RESOLVED",
where after the minutes consists of 8 paragraphs. Paragraphs 1
and 2 thereof duly dealt with the resolutions pertaining to the first

suspension of the applicant, which I already dealt with earlier in
the judgment.
58]
The very important aspect to note is
that paragraphs 3 to 8 of the minutes, which include sub-paragraphs
3.1 to 3.?thereof, are
an exact copy of paragraphs 1 to 6 of the
annexure "06''  document; hence, a reproduction of the
whole annexure "06''
document.
59]
Returning to the annexure "06"-document,
I will now deal with specific aspects thereof, where after I will
deal with the
document considered as a whole.
60]
In terms of Regulation 5(2) the
allegations of misconduct must have been tabled by the Executive
Mayor before the Municipal Council
not later than seven days after
receipt thereof, failing which the Executive Mayor may request the
Speaker to convene a special
council meeting within seven days to
consider
"the said reporf'.
Although it is not clear when the
allegations of misconduct were received, the allegations were for the
first time levelled against
the applicant on 29 June 2022 already.
It is evident that the allegations of
misconduct against the applicant which were again tabled on 29 August
2022, are exactly the
same as the previous ones on which the
applicant's first suspension was based.
The tabling of the allegations of
misconduct during the meeting of 29 August 2022 consequently
definitely fell outside the time-period
of seven days after receipt
thereof.
However,
since it was now tabled during a special council meeting, I accept
for purposes of this application, without deciding same,
that the
tabling thereof during the meeting of 29 August 2022, possibly
occurred within the second seven-day time-period provided
for in Regulation 5(2).
61]
With regard to the allegations of
misconduct as such, the Municipality alleges in its answering
affidavit that the said allegations
"remained
serious"
and "some
of
the identified steps constituting misconduct, are of
a
continuous nature"
and that they were therefore again
tabled during the meeting of 29 August 2022.
62]
Mr Pienaar submitted that the annexure
"O6"-document did not constitute a report setting out facts
and details regarding
the alleged acts of misconduct committed by the
applicant.
Mr
Pienaar contended that in the absence thereof the Municipal Council
could not have been satisfied on 29 August 2022 that there
is
reasonable cause to believe that an act of misconduct has been
committed by the applicant as required by Regulation 5(3)(a).
63]
Mr Rautenbach submitted that the
Municipality did not consider the guilt or innocence of the applicant
during the Regulation 5(3)
process and that the applicant's
contentions regarding the absence of factual substantiation of the
allegations are consequently
misplaced. Mr Rautenbach
relied on the judgment in
lmatu
o.b.o. Hobe v Merafong City
Local Municipality &
Others
[2017]
10 BLLR 1040
(LC)
where
the court held at para [21] as follows:
"...
Obviously, it is not necessary for the employer to place evidence
before the employee but simply to outline the allegations
of
misconduct that will be investigated. In relation to the reasons why
the employer believes the employee's continued presence
in the
workplace pending the investigation would be a problem. Regulation 6
is very explicit about what must be set out."
64]
However, in paragraph [22] of the
Hobe-judgment
the court specifically placed the aforesaid
dictum
in context when it stated the
following:
"The
principles enunciated above only address the extent to which an
employee must be given an opportunity to address the municipal

employer before a decision is taken to suspend him   "
65]
The Labour Appeal Court in the judgment
of
MEC
for
Education, North West
Provincial Government
v
Gradwell
[2012]
8 BLLR 747
{LAC) at para [28] held as follows with regard to the
allegations of misconduct:
"[28]
... The justifiability of a suspension
invariably rests on the existence of a
prima
facie
reason to believe
that the employee committed serious misconduct.
Only once that has been
established
objectively
, will it be possible to
meaningfully engage in the second line of enquiry (the justifiability
of denying access) with the requisite
measure of conviction.
The nature, likelihood and the
seriousness of the alleged misconduct will always be relevant
considerations in deciding whether
the denial of access to the
workplace was justifiable."
(Own
emphasis)
66]
In
Lebu
v Maquassi Hills Local Municipality & Others
(2012) 33 ILJ 2623 (LC) (7 December
2011) at para [16] the court dealt with the procedure relevant to the
precautionary suspension
of a senior manager and stated the first
requirement to be the following:
"a.
A municipality is entitled to suspend a senior manager on full pay,
if it
reasonably believes
that the senior manager has
committed an act of serious misconduct." (Own emphasis)
67]
When one reconsiders the relevant
provisions of Regulation 5, with the aforesaid case law in mind, the
following aspects are evident:
1.
Regulation 5(2) clearly contemplates the
consideration of a
"report'.
2.
Regulation 5(3)(a) requires
"reasonable
cause to belief that an act of misconduct has been committed'
by the senior manager.
3.
Regulation 5(3)(b) determines that if
"there is no evidence to support
the alllegations of misconduct',
the
Municipal Council must dismiss the allegations of misconduct.
68]
In my view the aforesaid three aspects
of Regulation 5 are indicative thereof that what is required to serve
before a Municipal
Council, is definitely more than mere bald
allegations like in the present instance.
The word
"report'
speaks for itself.
A
"reasonable
cause to believe"
cannot be
formed in the absence of any facts which substantiate the allegations
of misconduct.
Furthermore,
considering that Regulation 5(3)(b) deals with the situation where
there is
"no evidence to support
the allegations of misconduct'
it
follows, in my view, that Regulation 5(3)(a) has to be interpreted to
mean that last-mentioned Regulation will be applicable
where there
is
evidence
to support the allegations
of misconduct, on the basis of which a
"reasonable
cause to believe"
can be
formed.
69]
The words,
"prima
facie reason to believe"
and
"established objectively'',
used
by the Labour Appeal Court in the
Gradwell-judgment
,
supra,
are,
in my view, further confirmation that mere bald allegations, in the
absence of any substantiation, do not constitute compliance
with
Regulations 5(2) and 5(3).
70]
It was impossible for the Municipal
Council to have made any of the aforesaid required determinations in
the absence of any form
of factual substantiation. The present
circumstances effectively mean that the Municipal Council blindly
accepted the mere say-so
of whoever made the respective allegations
of misconduct, which is far cry from the requirements
set out in the Regulations and in the
relevant case law. I am acutely aware that it is not necessary for
the Municipality to have
evidence available to prove the guilt of the
applicant, but more than mere bald allegations are required.
71]
In addition to the aforesaid fatal
inadequacies in the process followed by the Municipality, there is
also absolutely no indication
in the minutes of the meeting of 29
August 2022, annexure "07'', that the allegations were discussed
and/or considered in
any manner. In respect of the Municipality's
allegation that some of the alleged acts of misconduct are of
a continuous nature, there is also no
indication in the minutes that any such discussions took place.
72]
In paragraph 4 of the minutes of the 29
August 2022 meeting, annexure
"07'',
the
resolution
regarding
the
alleged
acts
of
misconduct         was
recorded
as
follows
(an
exact
copy
of paragraph 2 of the annexure
"06"-document):
4.
Council again, as on 1 August 2022,
resolves
that these allegations are
serious and merit investigation.
The
decision of 1 August 2022 is therefore re-confirmed, since no further
representations or facts have come to the knowledge of
council and/or
the Executive Mayor which does not merit further investigation."
(Own emphasis)
73]
According to the averments in the
answering affidavit the Municipality
"reconsidered''
the allegations of misconduct and
considered it
"afresh".
However, as correctly pointed out by
Mr Pienaar in his argument, when the wording of the resolution is
considered, as emphasized
in bold letters in the previous paragraph,
it contradicts and negates the averments that the alleged acts of
misconduct were considered
afresh. I agree with the submission by Mr
Pienaar that it is evident that the Municipal Council merely
rubberstamped its pervious
decision of 1 August 2022 without having
considered the allegations of misconduct
de
novo
and objectively.
74]
In my view and for the reasons set out
above, the Municipality consequently failed to comply with the
provisions of Regulations
5(2) and 5(3). The aforesaid resolution
contained in paragraph 4 of the minutes, is consequently unlawful.
75]
For the sake of completeness, I have to
point out that as a result of my finding that the resolution in
paragraph 4 of the minutes
is
unlawful,
it
follows
that
the
resulting
resolutions recorded
in
paragraphs
5
and
6
of
the
minutes,
are
also
unlawful:
"5.
That Council furthermore resolves that [an] independent investigation
based on reasonable cause that the MM has committed
an act or acts of
misconduct as Municipal Manager, is herewith instituted.
6.
That Council appoints Adv. Jerry Merabi from the Free State Society
of Advocates, as the independent investigator, to conduct
such
investigation necessary which would enable him to submit a report
with the recommendations to the Mayor within 30 days of
his
appointment."
76]
The Municipality contended in its
answering affidavit that Regulation 5(3) concerns a process that is
separate from the process
of deciding on the precautionary suspension
of a senior manager in terms of Regulation 6.
77]
With regard to the "in principle"
decision of the Municipal Council on 29 August 2022 to suspend the
applicant in terms
of Regulation 6 and to call upon her to make
representations as to why she should not be suspended, Mr Pienaar
submitted that although
Regulations 5 and 6 provide for a
two-fold procedure and enquiry, a
precautionary suspension in terms of Regulation 6 can only follow if
the Municipal Council has
reasonable cause
to believe that the applicant committed
an act of misconduct, after having properly complied with the
procedure in terms of Regulation
5.
In
my view Mr Pienaar's submission
is
line
with
the
dictum
in
the
Gradwell-case,
supra,
which I already referred to, but
which I will repeat for
purposes
of this aspect:
"[28]
...
The
justifiability of a suspension invariably
rests on the existence
of a
prima facie
reason
to believe that the employee committed serious
misconduct.
Only once that has been established objectively, will it be possible
to meaningfully engage in the second line of enquiry (the

justifiability of denying access) with the requisite measure of
conviction. The nature, likelihood and the seriousness of the alleged

misconduct will always be relevant considerations in deciding whether
the denial of access to the workplace was justifiable."
(Own
emphasis)
78]
In the judgment of
Matlala
v Greater
Tzaneen
Local
Municipality
(J2289/19)
[2020] ZALCJHB 2 (3
January 2020} at para [24] the same principle was also applied:
"[24]
Was there thus compliance in this case? In answering this question,
regard must first be had as to
when Regulation 6 can be relied
upon
.
This can
only competently happen
if the
employer has
a
reasonable belief of the existence of
serious misconduct.
has to be areasonable belief on a prima
facie basis
. It is therefore important for the respondent in this
instance to at least set out a prima facie basis for believing that
the applicant
committed serious misconduct, as part of any notice of
intention to suspend under Regulation 6." (Own emphasis)
79]
Therefore, in the absence of a valid
decision in terms of Regulation 5(3), the Municipal Council could not
have resolved on 29 August
2022 to place the applicant on
precautionary suspension in terms of Regulation 6 and to call upon
her to make representations as
to why she should not be suspended.
I have already found that the resolution
by the Municipal
Council
on
29
August
2022
with
regard
to
the
allegations of misconduct did not comply with Regulation 5(3) and is
therefore unlawful.
It
consequently follows that the "in principle" resolution
taken on 29 August 2022 to place the applicant on precautionary

suspension and to call upon her to make representations, is
mutatis
mutandis
unlawful.
80]
It follows
ex
lege
that the subsequent resolution
taken on 9 September 2022 to indeed place the applicant on
precautionary suspension, is also unlawful
and stands to be set
aside.
81]
However, I will continue to also deal
with the remaining aspects regarding the merits of this application.
82]
I indicated earlier in the judgment that
I will also deal with the annexure "O6"-document
considered as a whole.
83]
On the Municipality's own version, as
previously indicated, annexure "06'' was prepared and circulated
"to inform the councillors of
the aspects of the disciplinary enquiry to be considered against"
the applicant.
Although annexure "06'' consists of
two documents, I have already found that the one document only
related to the first suspension
of the applicant and consequently,
for purposes of the present suspension of the applicant, only the
annexure "O6"-document
served before the Municipal Council.
84]
I have already quoted the contents of
the annexure "O6'' document.
The
document was distributed before any of the alleged
discussions
and
considerations
regarding
the allegations of misconduct and/or the
possible precautionary suspension of the applicant had taken place
and consequently also
before the Municipal Council took any
resolutions in respect of any of these two aspects.
However, lo and behold, the annexure
"O6"-document already contained and reflected the exact
resolutions which the Municipal
Council took after the alleged
discussion and consideration of all the relevant aspects. This is
evident from the minutes, annexure
"07", which reflects a
repetition of the contents of the whole annexure "O6"-document.
I find it beyond comprehension
how the Municipality can rely on this
document and at the same time attempts to allege that there had been
a proper and objective
discussion and consideration of the issues at
hand. The contents of the annexure "O6"-document
are indisputably indicative of the
contrary.
85]
In my view, when the whole of the
annexure "O6"-document which served before the Municipal
Council is considered, there
is no basis upon which I can find that
the resolutions which the Municipal Council took on 29 August 2022,
with the exclusion of
paragraphs 1 and 2 thereof, were reasonable
and/or objective. The Municipality failed to comply with the
provisions of the Disciplinary
Regulations and the said resolutions
are consequently unlawful.
B.
The events between 29 August 2022 and
9 September 2022:
86]
As previously indicated, Regulation 6(2)
reads as follows:
"Before
a senior manager may be suspended, he or she must be given an
opportunity to make a written representation to the Municipal
Council
why he or she should not be suspended, within seven [7] days of being
notified of the council's decision to suspend him
or her."
87]
Paragraph 7 of the resolution reflected
in the minutes of the meeting of 29 August 2022, annexure "07",
records the resolution
as though the decision has already been taken
to suspend the applicant.
It
is not worded or reflected as an "in principle" decision:
"7.
That council furthermore resolves to place the Municipal Manager ...
on precautionary suspension with full-pay ...
"
88]
The fact that it appears not to have
been just an in-principle decision, is further confirmed by the first
part of paragraph
8
of the resolution recorded in the minutes, annexure "07":
"8.
That the Municipal Manager ... will forthwith be provided of a letter
confirming its decision to place her on precautionary
suspension ..."
89]
However, it is evident from the second
part of paragraph 8 of the resolution that it was also decided to
provide the applicant with
the opportunity to make written
representations as to why she should not be suspended:
"8.
... also providing her with the opportunity to make written
representations to the Executive Mayor, who shall report the
MM's
submissions to the Municipal Council on the reasons why the MM should
not be suspended
90]
It is also common cause that the letter
which was delivered to the applicant indeed made provision for her to
provide reasons as
to why she should not be suspended.
I will later return to the contents of
the said letter.
91]
The reason why I refer to the wording of
the resolution despite the fact that the applicant was granted the
opportunity to advance
reasons why she should not be suspended,
is that, in my view, it constitutes one
of the factors which is indicative of an absence of objectivity and
proper compliance with
the Regulations -
a matter of merely paying lip-service to
the provisions of the Regulations.
92]
The further events are also relevant in
this regard.
In
paragraph 19.4 of the founding affidavit the applicant states as
follows:
"19.4
But on the same day, the Executive Mayor contacted me and instructed
me to vacate the Municipal premises. The reason
that he gave for this
instruction was that I was already suspended. Further to this, the
Executive Mayor wrote and circulated a
memorandum to all employees of
the Municipality informing them that I was already on suspension. I
append a true copy of that memorandum
(dated 31 August 2022) and mark
it "LM6".
19.5
Indeed and even prior to me receiving this letter, the Executive
Mayor attended to my personal residence on 30 August 2022.
I was not
at home but one of my children was. I believe the Executive Mayor
wanted to have a personal discussion with me and given
his subsequent
actions (one day later) no doubt he wanted to tell me that I had
indeed been suspended. What his true intention
however was remains a
mystery."
93]
In the answering affidavit the response
to the aforesaid two paragraphs is the following:
"88.
AD PARAGRAPHS
19.4 -19.5:
I
have already explained the mistake that the Executive Mayor made in
distributing the memorandum, but the applicant is not telling
the
truth when she alleges that the Executive Mayor attended to her
personal residence and I refer again to the confirmatory affidavit
by
the said Executive Mayor."
94]
What is evident from the aforesaid, is
that the Municipality does not deny that the Executive Mayor
contacted the applicant and
instructed her to vacate the Municipal
premises due to her suspension; hence, an immediate suspension.
95]
The memorandum which the applicant
refers to, annexure "LM6" to the founding affidavit, is
dated 31 August 2022 and was
signed by the Executive Mayor.
It was directed to the "Directors
and Managers" and also forwarded for the attention of the "FDDM
Secretaries".
The
contents thereof read as follows:
"RE:
NOTICE OF PRECAUTIONARY SUSPENSION
OF MS. LIND
I
MOLIBELI:
I
hereby inform you that Council on its sitting on the 29th of August
2022 resolved that Ms Lindi Molibeli be
placed on precautionary
suspension
with effect from 30 August 2022.
Further
communique will be issued to inform you of the appointed acting
Municipal Manager.
Hope
you find the above in good order." (Own emphasis)
As
can be seen, the memorandum even made mention of the appointment of
an acting Municipal Manager.
96]
The explanation by the Municipality in
the answering affidavit reads as follows:
"45.
The Executive Mayor of the Municipality, who was tasked with
providing her with a letter of suspension, unfortunately

misunderstood the council resolution of that day and he caused the
memorandum, appended as annexure 'LM6' to the founding affidavit
to
be distributed to the senior management of the Municipality informing
them of the decision of the council to place the applicant
on
precautionary suspension with effect from 30 August 2022.
46.
47.
The Executive Mayor made a mistake to
provide the said
memo
to the officials and to hold the position that the applicant was
suspended with effect from 30 August 2022 which was not the
case.
48.
49.
The Mayor was subsequently advised of
his erroneous interpretation of the council resolution of 29 August
2022 and he admits that
he had made a mistake.
His memo, 'LM6', suggests that he was
'jumping the gun' by informing senior management of the Municipality
that the applicant was
suspended with effect from 30 August 2022
which was not the case and which was not the resolution that the
council took.
50.
It is humbly submitted that the
Municipality cannot be held to be penalised for the Executive Mayor's
wrong interpretation of the
council resolution and that such notice
distributed by him had no effect since this was not what the council
resolved as is clear
from the contents of annexure 'LM5' to the
founding affidavit.
51.
The Executive Mayor informed me that he
apologised for his erroneous interpretation and confirm that he acted
in his personal capacity
when he harboured the wrong impression of
what the council resolved on 29 August 2022.
52.
I append hereto as annexure '08', a
confirmatory affidavit deposed to by the Executive Mayor, Councillor
Dennis
Khasudi.
53.
The Executive Mayor, however, never went
to the house of the applicant or spoke with her minor child and
strenuously deny these
submissions from the applicant.
54.
The Executive Mayor sent a driver from
his office to the
address
of the applicant and it could be that the child of the Municipal
Manager mistook the driver of the Mayor for being
the Mayor, but the Mayor never attended
at any stage the house of the Municipal Manager."
97]
I deem it necessary
to deal with the applicant's response
in her replying affidavit:
"49.
The Executive Mayor is clothed with
delegated powers of the Municipal Council and therefore plays an
oversight role on behalf of
the Municipal Council.
He also exercises executive authority on
behalf of the Municipal Council in the implementation of decisions.
50.
The Municipal Council can therefore not
lightly escape and be exonerated
from
the acts carried out and powers
exercised on its behalf by the Executive
Mayor.
51.
The Executive Mayor therefore clearly
did not only act in his personal capacity when he distributed the
said memorandum on 30 August
2022.
52.
53.
I wish to also point out that the
alleged mistake was never corrected at any time thereafter by either
the Municipal Council or
the Executive Mayor.
54.
I persist that I was informed by one of
my children that the Executive Mayor and his driver, Mr Moletsane
attended to my residence
on 30 August 2022. As recorded in paragraph
5 of Matlho Attorneys' letter to the Municipality dated 31 August
2022 (annexure 'LM?'),
when my child telephonically called me, Mr
Moletsane identified himself and said he is with the Executive Mayor.
My child also
confirmed that Mr Moletsane was accompanied by another
gentleman.
55.
I
still
do
not
know
why
they
attended
to
my
residence. assume that they wanted to
deliver the letter, annexure 'LM5', to me, which was delivered to me
by hand on 31 August
2022. The Municipality however does not explain
why the Executive Mayor's driver attended to my residence."
98]
Suffice to say that it seems strange
that the Executive Mayor, who has been involved in the disciplinary
procedures against the
applicant from the onset, would have
misunderstood the precautionary suspension process, especially
considering that he was also
involved in dealing with the first
urgent application. Objectivity remains one of the most crucial
elements of natural justice
and fairness as provided for in
Regulation 4(4).
C.
The resolution of 9 September 2022:
99]
The undated letter which was handed to
the applicant on 31 August 2022, signed by the Executive Mayor and
addressed to the applicant,
annexure "LM5" to the founding
affidavit, contains in the first 4 paragraphs thereof a reference to
the history of the
first suspension
of
the applicant.
Unfortunately,
I again consider it necessary to quote extensively from the said
letter as from paragraph 5 thereof:
"5.
The Municipal Council
already took notice
of the
allegations of misconduct against you,
which allegations are
serious and merit investigation. The Executive Mayor
once again
tabled the allegations of misconduct
against you at a council
meeting on Monday 29 August 2022, during which meeting
it was
reconfirmed
by council that the allegations are serious and merit
investigation.
6.
It is recorded that the council also
resolved on 29 August 2022:
6.1
to institute an independent
investigation based on reasonable cause that you have committed an
act or acts of misconduct as Municipal
Manager, some of which acts of
misconduct may be of a serious nature, and;
6.2
to appoint advocate Jerry Merabi ...
7.
Ultimately on 29 August 2022, the
Municipal council
again resolved to
place you on precautionary suspension,
with
full pay since the Municipal
Council has reason to believe that:
7.1
your presence as the Municipal Manager
at the municipal administrative offices may jeopardise further
investigation into your alleged
misconduct;
7.2
your continued presence at the municipal
offices will be detrimental to the stability of the Municipality and
that you may interfere
with potential witnesses, seeing that you are
the Head of Administration and the accounting officer of the
Municipality, to whom
many of the potential witnesses reported either
directly or indirectly.
8.
The aforesaid belief
of the Municipal
Council
emanates
from the alleged acts of misconduct
which are the following:
[The
alleged acts of misconduct are then set out in paragraphs 8.1 - 8.7,
a repetition of what was set out in the annexure '06'-document
and in
paragraphs 3.1 - 3.7 of the minutes of the 29 August 2022 meeting,
annexure '07'.]
9.
You are provided with the opportunity to
make written representation to the Executive Mayor, who shall report
your submissions to
the Municipal Council on the reasons why you
should not be suspended.
Your
written representation must be received by the office of the
Executive Mayor within 7 (seven) days from date of receipt of
this
letter.
10.
You are accordingly invited to make
written representations on why you should not be placed on suspension
within seven days from
date of receipt of this letter."
(Own
emphasis)
100]
When the reasons for the precautionary
suspension as set out in paragraph 7 of the aforesaid letter are
compared with the reasons
recorded in paragraphs 7.1 and 7.2 of the
resolutions of 29 August 2022, as contained in the minutes, annexure
"07'' to the
answering affidavit, it is evident that a part
thereof as contained in the letter differs from the actual
resolution.
In
respect of the alleged jeopardising of the further investigation, the
letter does not contain the part of paragraph 7.1 of the
resolution
which reads
"since the MM
as
the Head of the Administration has
access
to
all and any relevant documentation which may be required to be
secured in order to complete the investigation into the a/legations

of misconduct."
This had the
result that the applicant was not properly informed of the alleged
reasons for her precautionary suspension.
101]
The applicant duly submitted written
representations, a copy of which is attached to the answering
affidavit as annexure "011".
102]
On 6 September 2022 notice was given of
a Second Special Council
Meeting
to
be
held
on
9
September
2022.
Attached to that notice was an Index and
Agenda, attached to the answering affidavit as annexure "01 0".
Item 21 of the said agenda duly made
provision for
"FEEDBACK
ON
THE
PRECAUTIONARY
SUSPENSION
OF THE
MUNICIPAL
MANAGER"
.
103]
With regard to the aforesaid item on the
agenda and the manner in which the Municipal Council dealt with it
during the
meeting
of 9 September 2022, the following averments are stated in paragraphs
66 to 68 of the answering affidavit:
"66.
I append a copy of the item that served before the municipal council
in support of the aforesaid item on the agenda
hereto as annexure
'011', which item
informed the council of the
reasons
why the Municipal Manager is required to
be
placed
on precautionary suspension
, as well as her
response to these allegations.
67.
The council
ultimately
concluded
that the precautionary suspension should
still
be implemented
; the reasons advanced
by the applicant did not convince the council that her presence at or
in the municipal administrative offices
would not
jeopardise further investigation
or that
possible witnesses may
be interfered with.
68.
Accordingly, the council resolved on 9
September 2022 to place the Municipal Manager on precautionary
suspension as is
evident
from
the
resolution
appended
hereto
as
annexure ·012'." (Own
emphasis)
104]
As already indicated, annexure "011"
to the answering affidavit is the written representation which the
applicant submitted
on 7 September 2022.
Although paragraphs
7.1 -7.3 thereof summarised the reasons
which were set out in the undated letter which informed the applicant
of the request to
make written submissions, the said document does
not and could not have been considered to have
"informed'
the council of the reasons why the
applicant is to be placed on precautionary suspension. This is
moreover so since a part of the
reasons
on which the Municipal
Council
allegedly
based their decision during the meeting
of 29 August 2022, was not even conveyed to the applicant in the
letter of suspension.
105]
Furthermore, annexure "011" is
a 13-page document which sets out numerous factual allegations and
reasons as to why, according
to the applicant, she should not be
placed on precautionary suspension.
In
terms of the agenda this document was not circulated prior to the
meeting.
This,
in my mind, immediately raises the question to what extent the
Municipal Council was able to and did in fact apply their minds
to
the contents of annexure "011" if same was only handed to
them during the meeting.
106]
The resolution on which the Municipality
relies as contained in annexure "012" to the answering
affidavit, which appears
to be an extract from the minutes of the
said meeting of 9 September 2022, was recorded to have been the
following:
"RESOLVED:
1.
That after having
considered
and discussed the written representation
submitted
by the Municipal Manager ...
as
to why the council should not place her on precautionary suspension,
...
,
the
council
unanimously
agreed
to
place
Ms
M.L. Molibeli on precautionary suspension with immediate effect while
investigations into the allegations of misconduct against
her are being investigated."
107]
The rest of the resolution recorded that
the suspension shall be subject to certain conditions, which
conditions were also recorded.
Paragraph
2.5 of the resolution further recorded the following as part of the
resolution:
"That
the Executive Mayor informs the Municipal Manager of the
aforementioned council resolutions as soon as possible after
the
council meeting."
108]
From the aforesaid it is evident that
there is no indication in the minutes of the contents or the nature
of any alleged consideration
and/or discussion that took place with
regard to the precautionary suspension of the applicant.
Very importantly, the resolution does
also not reflect the alleged reasons for the precautionary suspension
of the applicant.
109]
In
Matlala
v Greater Tzaneen Local Municipality.
supra,
the
court held as follows at para [29] of the judgment:
"[29]
The resolution of 22 October 2019 appears to simply recommend the
contemplated suspension of the applicant without any
reason for it,
solely for the purpose that the council could investigate the issue
relating to the tenders for the two road projects.
This does not
comply with what is required by Regulation 6. In my view, it should
at least be apparent from the resolution adopted
by the respondent's
council on what basis it is believed that the applicant committed
serious misconduct, and why it was required
to suspend the applicant,
with specific reference to the requirements in regulation 6(1)(a) and
(b)  "
110]
In the judgment of
Lebu
v
Maquassi
Hills
Local
Municipality,
supra,
at
para [16] the court determined as follows in relation to the
procedure relevant to the suspension of a senior manager:
"d.
The council is required seriously to consider any representations
made by the affected

senior manager.
I
t
must
take
those representations seriously
and make a decision, in the
light of those representations and its own interests as defined by
sub-regulation 6 (1), on whether
the manager should be suspended.
It
follows that if
the senior manager's representations are
rejected, the reasons
for
that rejection ought
to be furnished."
(Own emphasis)
111]
In paragraphs 41 and 42 of the heads of
argument filed on behalf of
the
Municipality, the following allegations
were
made:
"41.1
The applicant complains that the council resolution of 9 September
2022 does not record the reasons for her suspension,
but it is
evident that the resolution only reflects the ultimate decision. The
deliberations that took place would be recorded
and could have been
scribed, had the Municipality not been required to have filed its
answering affidavit in such an abbreviated
period. These reasons
would stem from the deliberations in the council meeting.
42.
The urgency with which the application was brought, being an urgent
review of decisions, prejudices the Municipality since
a proper
record could not be prepared which could have led to the transcribing
of the deliberations of the council meeting on 9
September 2022."
112]
In my view the aforesaid allegations do
not assist the Municipality at all.
The
allegations were not part of its case in the answering affidavit.
Although the Municipality lamented the
short period of time which was granted to it in which to file its
answering affidavit (which
I dealt with at the beginning of the
judgment), it made no mention of recordings and/or that it needed
additional time in order
to have same transcribed.
I cannot
accept
"evidence"
contained
in heads
of
argument
if
same has not been stated under oath. In
Matlala
v Greater
Tzaneen
Local Municipality
,
supra,
at para [34] a similar principle was
applied:
"[34]
Similarly, and in the answering affidavit, there is an attempt to
justify his suspension as being that his continued
presence at work
was likely to cause instability in the workplace, also never raised
before. There appears to be an
ex
post
facto
justification
of the
suspension, but considering the provisions of Regulation 6 and the
purposes thereof, such an approach cannot be permitted."
(Own
emphasis)
113]
In addition to the aforesaid, the
fallacy of the contention that
"the
resolution only reflects the ultimate decision"
is
evident from the fact that the resolution with regard to the
precautionary suspension of the applicant which was taken on 29

August 2022, as reflected in paragraph 7 of those minutes, annexure
"07", did in fact record the alleged reasons for
that
decision.
Therefore,
had the reasons for the precautionary suspension of the applicant
taken on 9 September 2022 been properly discussed and
objectively
decided, those reasons would have been recorded as part of the
resolution.
114]
In the subsequent letter of 12 September
2022, from the Executive Mayor addressed to the applicant, annexure
"LM9" to
the founding affidavit, in which the applicant was
notified of her precautionary suspension, the
"considerations"
upon which the Municipal Council
based its decision to suspend the applicant, were listed to be the
following:
"1.
That your presence at the Municipality
as Municipal Manager and all its satellite offices may jeopardise any
investigation(s) into
the alleged acts of misconduct;
2.
That your presence may be detrimental to
the stability of the Municipality;
3.
As the Head of Administration, you may
interfere with potential witnesses seeing that you are the Accounting
Officer to whom potential
witnesses report to you either directly or
indirectly;
4.
That you may commit further acts of
misconduct."
115]
In the absence of any reasons reflected
as part of the resolution, I cannot find that the aforesaid reasons
were in fact the basis
of the decision of the Municipal Council.
The arbitrary nature of these reasons is
even further evident from the fourth reason, being the commission of
further acts of misconduct,
since this alleged reason has never
previously featured anywhere.
116]
In fact, there are four different
versions of the Municipality's alleged reasons for the resolution to
have placed the applicant
on precautionary suspension, albeit for
purposes of the so­  called "in-principle"
decision taken on 29 August
2022 or for the final decision taken on 9
September
2022:
1.
The reasons contained in paragraphs 7.1
and 7.2 of the resolution reflected in the minutes of the meeting of
29 August 2022, annexure
"07".
2.
The reasons reflected in paragraphs 7.1
and 7.2 of the undated letter which was handed to the applicant on 31
August 2022, annexure
"LM5".
3.
The reasons reflected in paragraphs 1 to
4 of the letter dated 12 September 2022 which was handed to the
applicant on 13 September
22, annexure "LM9"
4.
The reasons reflected in paragraph 67 of
the answering affidavit.
117]
What I also find disturbing is the fact
that the letter of 12 September 2022 again refers to the first
decision to suspend the applicant
and states that the Municipal
Council resolved on 9 September 2022 and
"re-confirmed
their position to place you on precautionary suspension".
This serves as further confirmation
that the Municipal Council did not approach the consideration of the
present suspension on a
clean slate and with an open mind, but merely
went through the motions, or attempted to go through the required
motions, without
having applied their minds.
In this regard the following was stated
in
lmatu
o.b.o.
Daniel
,
supra,
at
paras [22] to [26]:
"[22]...
Before taking the decision, the Municipality must then consider its
reasons and the representations of the employee
as to why they should
not be suspended.
The Municipa
l
Council must at least apply
its mind to its reasons and the
employee's representations.
The decision to suspend the
employee is not legally validated
just because the employer
goes
through
the
motions
of
giving
the
employee
an
opportunity
to
make
representations
and
tabling
those
representations before the Council
.
[23]
[24]
...
Whether
because of an oversight or some other reason, l!
appears
that the meeting did not actually consider these
representations
because the minute
only
mentioned
his request for additional information.
[25]
[26]
In the circumstances, I am satisfied
that the respondent afforded the applicant an opportunity to make
representations, but when
he did so the Council did not consider them
and accordingly acted in breach of Regulation 6(3) and consequently
his suspension was unlawful. The
value of an opportunity to make
representations is entirely
negated
if they are not considered."
(Own emphasis)
118]
In any event the aforesaid reasons only
constitute a recital of the contents of the Regulation 6(1), which is
not sufficient. In
Lebu v Maguassi
Hills Local Municipality,
supra,
the
court held,
inter alia,
as
follows at para [14]:
[14]
... The municipality is then required to consider the matters set out
in sub-regulation (1) together with any representations
received, and
then and only then, may the municipality suspend the employee. I
would add that
in my view, it is not
sufficient for a municipality merely simply to
reproduce the justifications listed
in paragraphs (a) and (b). In the
present instance, that is what the
applicant has done, with the omission
only of the factor listed in
paragraph (a) (i) on the basis, presumably, that
the
investigation
initiated
into
the
applicant's
conduct
has
been
completed
"
119]
Mr Rautenbach contended that in so far
as there may have been shortcomings in the procedure, such
shortcomings should be condoned
on the basis thereof that the
Municipality substantially complied with the Regulations.
In this regard he referred to the matter
of
Maluleke v Greater Giyane Local
Municipality
&
Others
[2018]
ZALCJHB
456
(4
October
2018) at para [33]:
However,
a failure by a Municipality to comply with the relevant statutory
provisions does not necessarily lead to the actions under
scrutiny
being rendered invalid. The question is whether there has been
substantial compliance, taking into account the relevant
statutory
provisions in particular and the legislative scheme as a whole."
120]
In my view there is no basis upon which
I can find that the Municipality substantially complied with the
provisions of Regulations
5 and 6, considering the totality of facts
and circumstances I have already dealt with above.
121]
It has, after all, on numerous occasions
now been held that substantial compliance is not necessarily enough.
In
Penxa
v
Beaufort
West Local Municipality & Others
[2022] JOL 54312
(LC) at para [21]
the following was stated:
"[21]
Furthermore, the respondents' contention that there was a substantial
compliance with Regulation 6(2) is fallacious.
It cannot be
overstated that 'suspension is a measure that has serious
consequences for an employee, and is not a measure that
should be
resorted to lightly'. Moreover, when suspending the Accounting
Officer, an act that would invariably interrupt leadership
and in
turn impedes the rendering of the Municipal services, the
Municipality must comply with Regulation 6(2) to the letter; which
is
not insuperable obligation, in any event."
122]
The serious nature and consequences of a
suspension was also dealt with in
Lebu
v Maquassi Hills Local Municipality.
supra,
at
para [ 4]:
"[14]
... Suspension is a measure that has serious consequences for an
employee, and is not a measure that should be resorted
to lightly.
There appears to be a tendency, especially in the public sector,
where suspension is applied as a measure of first
resort and almost
automatically imposed where any form of misconduct is alleged. The
purpose of removing an employee from the workplace,
even temporarily
and on full pay, must be rational and reasonable, and must be
conveyed to the employee concerned in sufficient
detail to enable the
employee to compile the representations that he or she is invited to
make in a meaningful way. Of course there
are those instances where
precautionary suspension is a necessary measure, and where the
reasons to remove an employee from the
workplace as a precautionary
measure are compelling. But those cases will be the exception rather
than the norm." (Own emphasis)
Conclusion:
123]
Considering the totality of the
aforesaid findings, the resolution taken by the Municipal Council on
9 September 2022 in terms of
which the applicant was suspended, is
unlawful and stands to be set aside.
124]
Although I also found most of the other
resolutions to be unlawful, no specific relief was or is being sought
in relation thereto.
However, in my view, the Municipality will be
well­  advised to also take serious cognisance of those
findings.
125]
The fact of the matter is that the
disciplinary process against the applicant started off wrongly. As it
so often happens in such
circumstances, the subsequent attempts to
proverbially "patch-up" the process, were not successful.
126]
The applicant consequently made out a
clear right for the granting of the relief.
127]
In so far as it may be necessary, I also
find that the applicant has no alternative remedy, considering that
the relief is based
on unlawfulness.
128]
The applicant is in a fixed term
contract which is due to expire soon. The applicant stands to suffer
irreparable harm if the suspension
is not set aside.
Costs:
129]
There
is
no
reason
why
the
costs
should
not
follow
the
outcome of the application.
Order:
130]
The following order is consequently
made:
1.
The applicant's non-compliance with the
Court Rules relating to time-periods and service is condoned and the
application is heard
as an urgent application in terms of Rule 6(12).
2.
The second respondent's Council
Resolution taken on 9 September 2022, in terms of which the applicant
was suspended as the Municipal
Manager of the Second Respondent, is
declared unlawful and is set aside.
3.
The first and/or second respondents are
ordered to allow the applicant to forthwith resume her duties as
Municipal Manager of the
second respondent in all respects and to
allow her to perform all her executive and statutory functions.
4.
The first and second respondents are
ordered to pay the costs of the application, jointly and severally,
payment by the one the
other to be absolved.
C
VAN ZYL J
On
behalf of the applicant:
Adv.
CD Pienaar
Instructed
by:                                                           Matlho

Attorneys
BLOEMFONTEIN
On
behalf of the 1st and 2nd respondents:              Adv.

JS Rautenbach
Instructed
by
:                                                           Horn

& Van Ransburg Attorneys
BLOEMFONTEIN