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[2022] ZAECBHC 9
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Mbude v Premier of the Eastern Cape and Others (218/2022) [2022] ZAECBHC 9; [2022] 9 BLLR 859 (ECB) (3 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
OF
INTEREST
Case
no: 218/2022
In
the matter between:
NTOMBIZANDILE
MBUDE
Applicant
and
PREMIER
OF THE EASTERN CAPE
First respondent
MEMBER
OF THE EXECUTIVE COMMITTEE
DEPARTMENT
OF BASIC EDUCATION,
Second
respondent
EASTERN
CAPE
DEPARTMENT
OF PUBLIC WORKS AND
INFRASTRUCTURE
EASTERN CAPE
PROVINCE
Third respondent
JUDGMENT
Govindjee
J
Background
[1]
The applicant is the suspended Head of
Department of Basic Education (‘the department’) in the
province. She entered
into a fixed-term contract of employment
with the Premier on 1 June 2021 and is employed in terms of s 12 of
the Public Service
Act, 1994 until 31 May 2026.
[2]
The applicant received a letter from the
Premier’s office on 23 March 2022, seeking explanation on the
following:
a)
Why
the Learner Teacher Support Material (‘LTSM’) had not
been fully delivered to schools, against the backdrop of the
Eastern
Cape Division of the High Court, Makhanda, in
Khula
Community Development Project v The Head of Department, Eastern Cape
Department of Education and Others
(‘
Khula
’),
having instructed the applicant to ensure delivery of the LTSM to all
public schools in the province by 31 March 2022;
[1]
b)
Reports that some schools had not been
supplied with stationery;
c)
Criticism, ridicule and embarrassment
caused to the Eastern Cape provincial government for failure to pay
Education Assistants (‘EAs’);
d)
The withholding of the last instalment of
the Education Infrastructure Grant, amounting to approximately R205
million.
[3]
The
Premier requested a detailed report on what had led to these
failures, and the steps that had been taken by the applicant to
prevent their occurrence, by 28 March 2022.
[2]
The applicant responded on that date, annexing three reports:
a)
Report 1 – Report on payment of EAs
and General School Assistants (‘GSAs’);
b)
Report 2 – Report on the LTSM
delivery;
c)
Report 3 – Report on the withholding
of infrastructure allocation by the National Department of Education.
[4]
On
30 March 2022, the Premier gave the applicant notice of his intention
to suspend her and to institute an investigation into her
failure to
ensure delivery of LTSM, payment of EAs and in relation to
expenditure of the infrastructure budget, in the following
terms:
[3]
‘…
I
have noted the responses you provided and studied the annexures
thereto … As I perused and considered your responses, it
became apparent that your explanations did not respond to the points
raised in my letter … I have been clear in my communication
in
meetings of the Executive Council, in which you participate as an
invitee, that any under-expenditure resulting in allocated
budgets /
conditional grants being taken away from our Province is unacceptable
and will have consequences for those responsible
… Given the
above, I hereby wish to express my intention to investigate the
matters documented in my letter of 23 March
2022 further to determine
whether there is a case of misconduct, negligence and / or poor
performance that you may have to respond
to … In order to
conduct the aforementioned investigation unhindered, I am considering
placing you on precautionary suspension
whilst the investigation is
being conducted … Please submit to me by end of business
(16h30) on Monday, 4 April 2022 reasons,
if any, why I may not place
you on precautionary suspension pending the finalisation of
investigation.’
[5]
The
applicant questions the reasons for the Premier’s
non-acceptance of her responses. It is suggested that the Premier
ought
to have explained any insufficiency or inadequacy of the report
that had been provided to him.
[4]
The applicant had complied with the court order in
Khula
by
31 March 2022.
[5]
She responded
in writing to the Premier on 4 April 2022, again referencing the
three reports already mentioned.
[6]
In that correspondence, the applicant noted that:
‘
It
is difficult to understand the assertion that my 76 paged response
does not address the questions asked … In my response
I have
fully explained the challenges regarding the LTSM, as well as where
the Department is currently and therefore in my view,
my presence
cannot jeopardise any investigation on a matter that is near
completion and a matter that was out of my hands …
We are at
100% delivery of stationery and 97% for textbooks … (On the
issue of EAs and GSAs) We have covered all payments
except the last
run that Treasury withheld for March 2022. The non-payment of EAs as
well as the current status together with how
in future this matter is
going to be dealt with. Again, on this matter it is my view that at
the point where it is, it is resolved.
I also do not see how a
suspension would add any value in relation to the non-expenditure of
infrastructure budget, as I have again
detailed that this money was
not in the department’s coffers but was withheld by the
National Department of Basic Education
… (On the third issue)
The devoting of the R205 million for infrastructure is explained in
detail on the main report …
and I had taken all the steps to
circumvent this as outlined in detail in the report I sent you on 28
March 2022. We are on 97%
expenditure on the infrastructure grant …
as reported at EXCO. Had Treasury not withheld our upload, we would
have been
on 100% expenditure …’
[6]
The
applicant requested a meeting with the Premier to discuss these
matters, suggesting that the issues were rooted in events of
the
past. She advised the Premier that her presence would not jeopardise
any investigation into the alleged misconduct and conveyed
her view
that she had been singled out for blame. The Premier nevertheless
decided to suspend the applicant with full pay on 5
April 2022. He
expressed the reason for this to be ‘as a precautionary measure
pending investigations at the Department of
Education’. The
Premier’s letter explains the basis for his approach as
follows:
[7]
‘
In
order to ascertain the veracity of the allegations made, it is
important that an investigator be allowed untrammelled access
to all
documents and personnel … The personnel must be free to
co-operate with the investigator, without actual or perceived
fear of
reprisal … Suspension is not a punitive measure, and I do not
seek to punish you in any way … I have considered
your written
representations, and I am not convinced that your continued presence
in the department will not hinder the investigation
…’
[7]
The
applicant launched an urgent application to declare her suspension to
be unconstitutional, unlawful and invalid, based on the
Premier’s
alleged abuse of his powers. The applicant disavows reliance on the
Labour Relations Act, 1995 (‘the LRA’),
and seeks final
declaratory relief based on the doctrine of legality and an alleged
abuse of power on the part of a public official.
[8]
As such, the relief sought can only be granted on the facts stated by
the Premier, together with any admitted facts in the applicant’s
affidavits.
[9]
Urgency
[8]
The
approach to adopt when dealing with an urgent application is governed
by Uniform Rule 6(12). In terms of that rule, the court
has
discretionary power to dispense with the forms and service provided
for in the rules and to dispose of the matter at such time
and place
and in such manner and in accordance with such procedure as it deems
fit.
[10]
The first question is
whether there must be a departure at all from the usual process.
[11]
[9]
The
applicant is expected, in the founding affidavit, to ‘set forth
explicitly the circumstances which is averred render the
matter
urgent and the reasons why the applicant claims that substantial
redress could not be afforded at a hearing in due course’.
[12]
Put differently, if the matter were to follow its normal course as
laid down by the rules, would the applicant be afforded substantial
redress. If not, the matter qualifies to be enrolled and heard as an
urgent application. If so, the application does not pass the
test for
urgency. The question as to the absence of ‘substantial
redress’ in an application brought on usual timeframes
lies at
the heart of the question of urgency.
[13]
[10]
Urgency
is not a matter to be glossed over.
[14]
An applicant is obliged to go beyond a mere allegation of
urgency.
[15]
Even an
allegation of an infringement of constitutional rights, on its own,
does not render a matter urgent.
[16]
It is an absolute requirement to set forth the reason for claiming
that substantial redress would not be possible other than via
the
urgent application launched.
[17]
[11]
The
applicant relies heavily on
Apleni
v The President of the Republic of South Africa and Another
[18]
in support of her argument on urgency. That case was also brought as
an attempt to vindicate the rule of law, it being contended
that a
Minister had infringed upon the principle of legality in exercising
power to suspend without having the authority to do
so. The facts are
distinguishable in the sense that the applicant in this case concedes
that the Premier has the power, in law,
to suspend her, but
challenges the manner in which that power was exercised.
[19]
Nevertheless, many of the other arguments relating to the potential
negative effect of the suspension on service delivery and critical
projects appear to be borrowed from the case made out in
Apleni
v The President of the Republic of South Africa and Another
.
[20]
[12]
The
applicant also relies on abuse of power by a public official, ‘which
abuse may impact upon the rule of law and may have
a detrimental
impact upon the public purse’ to argue for the granting of
urgent relief.
[21]
Reference
is made to ss 1 and 237 of the Constitution, and the applicant
explains her actions upon receipt of the letter of suspension
and the
advice she received.
[22]
Under
the heading of ‘urgency’, the applicant avers that the
Premier has failed to respect the employment agreement
and that her
suspension has ‘already been prejudicial to me as it is a
topical matter in the public domain and it continues
to affect my
professional reputation and standing negatively’. Authority to
support the point that suspensions may have a
detrimental impact and
prejudice reputation, advancement, job security and fulfilment is
also cited.
[13]
The
applicant deals separately with the notion of ‘no substantial
redress in due course’.
[23]
Much of what follows relates to her responsibilities as head of
department and the important projects and matters that impact on
its
functioning. This includes the applicant’s role as supervisor
to senior managers in the department. There is also a suggestion
that
it would be inappropriate for an acting appointee to take over
functions when that person would not have the necessary background
knowledge or institutional memory, so that the department will not
obtain ‘value for money’ if the applicant is suspended.
[14]
The
submission in the applicant’s heads that the Premier has not
made an averment to the effect that the matter is not urgent,
or may
be taken to have accepted the issue because a dismissal of the matter
is requested, is wholly fanciful.
[24]
The Premier, in his answering papers, notes that the suspension is on
full pay, so that the applicant will suffer little or no
personal
prejudice warranting the matter being treated as urgent. The
applicant is criticised for not making any genuine substantiation
of
the allegation of an abuse of power. It is pointed out that there is
also no evidence of the department suffering any financial
loss
during the period of suspension. In addition, the submission is that
the professional reputation and standing of the applicant
cannot, on
its own, justify the urgency with which the matter was launched.
[15]
As
Mr Kroon SC, for the Premier, pointed out, many of these arguments
have previously been the subject of judicial pronouncement.
In
Ntabankulu
Local Municipality v South African Municipal Workers Retirement Fund
and Others
,
[25]
Lowe J noted that it was for the applicant to demonstrate
inter
alia
that
it would suffer real loss or damage were it to rely on normal
procedure. In
Association
of Mineworkers and Construction Union and Others v Northam Platinum
and Another
,
[26]
it was held that the court must be particularly circumspect in
determining whether urgency has been established in cases where
final
relief is sought, so that the applicant is expected to make out an
even better case of urgency.
[27]
Courts are generally slow to interfere where an employer exercises a
discretion to place an employee on a precautionary suspension
for
reasons of good administration and with a view to investigating
misconduct.
[28]
[16]
In
Zwakala
v Port St John Municipality and Others
,
[29]
the court analysed urgency on the basis of reputation and integrity
of a public figure and possible irreparable damage, as follows:
‘
The
difficulty I have is that almost every suspension by reason of the
investigation of allegations of misconduct would cause this
type of
prejudice. This does not make the matter urgent in the sense
described above. Furthermore, urgency can surely not be created
by
“rumour mongering” and “unfounded allegations of
embezzlement” … (others) must know, or ought
to know,
that a suspension pending further investigation is nothing more than
that. Such further investigations may establish impropriety
on the
applicant’s part. On the other hand they may not.’
[17]
Similarly,
in
Mangena
v Nelson Mandela Metropolitan Municipality and
Another,
[30]
Sandi J rejected a suggestion that a suspended employee’s
dignity had been affected on the basis that the code of conduct
and
disciplinary procedure that formed part of his contract of employment
made provision for this.
[31]
In this court in
Mabentsela
v The Premier of the Eastern Cape Province NO and Others
,
[32]
Sangoni J considered and rejected the suggestion that the department
and province would be detrimentally impacted by a suspension
because
a new manager might have less knowledge of its affairs and
difficulties.
[33]
[18]
The
Constitutional Court has accepted that where a suspension is on full
pay, ‘cognisable prejudice will be ameliorated’.
[34]
The reason for this is that a precautionary suspension is a special
kind of pause pending a further enquiry.
[35]
It must also be noted that, in addition to being on full pay, the
applicant will have the benefit of at least the commencement
of a
disciplinary hearing within 60 days from the date of suspension, if
in fact the investigation reveals that such a hearing
is
warranted.
[36]
Analysis
[19]
The
applicant is entitled to elect to pursue recourse in this court,
irrespective of whatever other causes of action may be available
to
her in due course. It is of no consequence that these other causes of
action have not been invoked to date.
[37]
Given the nature of the relief sought, which is final in nature, the
court must be particularly circumspect. The notion of ‘absence
of substantial redress’ is not equivalent to the irreparable
harm that is required before the granting of interim relief.
It has
been held to be something less.
[38]
The facts of each case will determine whether the applicant has made
out a case demonstrating that substantial redress would not
be
obtained in the ordinary course. That ‘substantial redress’
must relate to the applicant herself.
[39]
[20]
In the present instance, the submissions
about the impact on the applicant’s dignity, standing and
professional reputation
fits that enquiry neatly. In other words, the
question is whether a successful application brought in the ordinary
course will
afford the applicant substantial redress in protecting
her dignity, standing and professional reputation, bearing in mind
the role
that she occupied. By contrast, the arguments relating to
the applicant’s supervisory role within the department, the
loss
to the department and public purse caused by her suspension and
the difficulties that a stand-in will encounter are less clearly
related to the question of whether the
applicant
could obtain substantial redress at a hearing in due course.
[21]
The
comments of the court in
Zwakala
v Port St John Municipality and Others
,
[40]
quoted above, are apposite in respect of the link between urgency,
the applicant’s reputation and human dignity. On its own
this
cannot satisfy the requirements for urgency. Courts have noted that
high earning employees with means are inclined to seek
to jump the
queue and have their cases argued on an urgent basis, impacting on
the important principle of equality of employees
before the law. That
practice has been deprecated:
[41]
‘
The
reasons advanced by the applicant why urgent relief is sought relates
to his reputation. This can hardly be a basis to approach
this Court
for relief on an urgent basis. All employees who get dismissed or
suspended and believe that they are innocent, their
reputations are
tarnished by their dismissals or suspensions. They will eventually
get an opportunity to be heard where the employer
should justify the
charges against them. Should they fail to do so, such employees will
be reinstated with no loss of benefits.
I accept that some damage to
their reputations would have been done. This Court however is not in
the business of ensuring that
an employee’s reputation should
not be tarnished. If so, it will open the floodgates and this Court
will be inundated with
many such applications.’
[22]
The applicant’s claims of urgency
fall under this rubric. There appears to be nothing exceptional about
the impact of the
suspension on the applicant’s reputation or
dignity, on its own, to warrant the matter being treated as urgent.
It might
be added that the applicant has been on suspension for
approximately three weeks already. Even an order declaring the
suspension
to be unlawful and uplifting the suspension so that the
applicant was able to resume her duties would not remove the stain of
the
pending investigation and the possible future institution of
disciplinary proceedings.
[23]
I also have misgivings about the averment
that the impact of the applicant’s suspension on the
department, its employees and
work warrants the matter being
considered urgent. On my reading the ‘substantial redress’
that the applicant claims
will be lost must relate to her own
position. I might add that, on the Premier’s version, which
must be accepted in the case
of a factual dispute on the papers, the
acting head of department is suitably qualified to take over the
work. This is confirmed
by the second respondent, who explains that
the acting incumbent is amply qualified to act as head of the
Department, having been
a former Member of the Executive Council
(‘MEC’) who has also acted as head of department of the
Department of Public
Works and Infrastructure as well as the
Department of Health in the province. This provides strong support to
the conclusion that
there is no proper basis for the submission that
the applicant’s suspension as a public servant, leaving aside
her own personal
interests, will cause such prejudice to the
department to justify this urgent application on the timeframes it
has been brought.
[24]
It
is the argument that the Premier has abused his power, when coupled
with considerations of the consequences of the relief not
being
granted and the relevance of the relief sought if it is not granted
immediately, that tilt the scale.
[42]
There is no reason why the declaration of unconstitutionality,
unlawfulness and invalidity claimed in the notice of motion would
become irrelevant if granted in the ordinary course. But the
consequences of the prayer for the applicant’s suspension to
be
lifted, to enable her to perform her duties, would undeniably be
frustrated by court proceedings coupled to the ordinary timeframes.
By that time the suspension would in any event have had to be lifted
(or possibly extended by a presiding officer of a disciplinary
hearing) because of the 60-day time limitation provided for in the
SMS Handbook. This suggests that substantial redress would not
be
afforded to the applicant at a hearing in due course.
[43]
[25]
I
might add that this is certainly not to suggest that all cases of
alleged unlawful suspension are likely to merit an urgent application
of this nature. As a matter of general principle, the LRA-prescribed
dispute-resolution processes will be followed and only in
exceptional
and compelling urgent circumstances will this type of application be
permitted.
[44]
The seriousness
of the allegations levelled against the Premier make the expeditious
resolution of the underlying dispute in this
matter important and
heighten the sense of urgency. In
Apleni
v The President of the Republic of South Africa and Another
,
the court concluded that:
[45]
‘
Where
allegations are made relating to abuse of power by a Minister or
other public officials, which may impact upon the rule of
law, and
may have a detrimental impact upon the public purse, the relevant
relief sought
ought normally be urgently
considered
.’ (Own emphasis)
[26]
I
have also had the benefit of full consideration of the papers and
detailed argument presented by senior counsel for both the litigating
parties. In all these circumstances, this does not seem to be an
appropriate case to non-suit the applicant based on non-compliance
with the rules on urgency, despite the tight timeframes afforded to
the Premier to respond to the application.
[46]
The
applicant’s submission on the merits
[27]
The applicant contended in her founding
affidavit that there was no valid reason for her suspension and that
it was unclear whether
her suspension was based on incapacity or
misconduct, so that she had been treated prejudicially, her
professional reputation and
standing being negatively affected. As
alluded to, the applicant also argued that it was improper for an
acting head of department
to be appointed in her stead, given service
delivery challenges and her own prior knowledge of projects and
institutional memory.
It was submitted that there was a higher duty
on the Premier to explain the suspension, ostensibly on the basis
that the applicant
in fact reported to the second respondent, and
given the reports that had been provided to him. The suspension was,
it was submitted,
baseless and resulted in the department not
receiving value for the salary it would still have to pay to the
applicant whilst the
investigation proceeded.
[28]
The
applicant concedes that the Premier has the power, in law, to suspend
her,
[47]
but argues that those
powers have been exercised in a manner that is unconstitutional,
unlawful and invalid. The argument is that
‘the Premier is
abusing his powers in his capacity as my executive authority in
failing to observe the lawful processes in
having effected my
suspension’.
[48]
The
crux of the matter is whether the applicant was lawfully suspended on
5 April 2022, or whether her suspension was in fact unlawful,
unconstitutional and invalid. The applicant also suggests that her
employment agreement has been breached, seeking an order of
specific
performance on the part of the Premier prior to suspension, although
the applicant did not pursue that angle during argument.
The
legal position
[29]
There
is a clear difference between an employee’s dismissal and
suspension. In the latter instance, the employee is only temporarily
prohibited from rendering services to the employer, usually pending
an investigation, whilst otherwise continuing to be an employee
entitled to payment. The parties agree that precautionary suspensions
in this context are governed by the Senior Management Service
(SMS)
Handbook (‘the SMS Handbook’), which applies to senior
management in the public service.
[49]
Paragraph 18.1 of the SMS Handbook provides that the suspension of
heads of department must be dealt with in terms of chapter 7
of the
SMS Handbook, including para 2.7(2) which provides as follows:
‘
(2)
Precautionary suspension or transfer
(a)
The employer may suspend or transfer a
member on full pay if –
·
The member is alleged to have committed a
serious offence; and
·
The
employer believes that the presence of a member at the workplace
might jeopardise any investigation into the alleged misconduct,
or
endanger the wellbeing or safety of any person or state property.
(b)
A suspension or transfer of this kind
is a precautionary measure that does not constitute a judgment and
must be on full pay.
(c)
If a member is suspended or transferred
as a precautionary measure, the employer must hold a disciplinary
hearing within 60 days.
The chair of the hearing must then decide on
any further postponement.’
[30]
In
MEC
for Education, North West Provincial Government v Gradwell
(‘
Gradwell
’),
[50]
the Labour Appeal Court considered this paragraph of the SMS Handbook
in the context of an application for urgent relief. Murphy
AJA noted
that the requirement of para 2.7(2) is that ‘the employer
should believe (reasonably) that the presence of the
employee ‘might
jeopardise any investigation’. The court
a
quo
had erred by setting the test too high and requiring a decision to
conduct an investigation ‘before suspension is contemplated’.
The Labour Appeal Court held that the wording of para 2.7(2) does not
unequivocally require the employer to take a conclusive decision
to
investigate before the power can be lawfully exercised. It is enough
that
any
(current or future) investigation might be jeopardised.
[51]
The use of the word ‘any’ intimates that if an
investigation is within contemplation the precondition will be met.
The court added the following:
[52]
‘
Aside
from that, the judge erred in his approach to determine the
lawfulness of a suspension in terms of para 2.7(2). His choice
not to
consider the serious allegations against the respondent was mistaken.
As a general rule, a decision regarding the lawfulness
of a
suspension in terms of para 2.7(2) will call for a preliminary
finding on the allegations of serious misconduct as well as
a
determination of the employer’s belief that the continued
presence of the employee at the workplace might jeopardise any
investigation etc. 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 meaningfully to
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.’
[31]
In
applying the facts of that matter to this test, the court accepted
that the MEC’s case that the respondent’s presence
at the
workplace ‘
might
jeopardise any investigation’ was both ‘logical and
justifiable in the light of the seriousness of the alleged
misconduct’.
[53]
[32]
The
Constitutional Court has since held, in
Long
v South African Breweries (Pty) Ltd
and
Others
(‘
Long’
),
that a pre-suspension inquiry is unnecessary when employees are
suspended pending the outcome of an inquiry.
[54]
Where the suspension is precautionary and not punitive, there is no
requirement to afford the employee an opportunity to make
representations.
[55]
This is
because suspensions imposed as precautionary measures are not
considered to be the same as a disciplinary step. It is self-evident
that
Long
was
not concerned with a case of a senior manager in the public service.
It must also be highlighted that
Long
involved
an appeal against a decision of the Labour Court,
South
African Breweries (Pty) Ltd v Long
(‘
SAB
’),
that dealt with the principles of unfair suspension as a possible
unfair labour practice in terms of the LRA.
[56]
The Constitutional Court’s comments in supporting the decision
of the Labour Court must be read in the context of the question
of
fairness of a suspension:
[57]
‘
In
determining whether the precautionary suspension was permissible, the
Labour Court reasoned that the fairness of the suspension
is
determined by assessing first, whether there is a fair reason for
suspension and secondly, whether it prejudices the employee.
The
finding that the suspension was for a fair reason, namely for an
investigation to take place, cannot be faulted … Generally
where the suspension is on full pay, cognisable prejudice will be
ameliorated.’
[33]
Notwithstanding
that decision, it is
Gradwell
that clarifies the proper approach to determine the lawfulness of a
suspension in terms of para 2.7(2) of the SMS Handbook.
[58]
That test involves the existence of a prima facie reason to believe
that the employee committed serious misconduct. Only once this
has
been established objectively will consideration be given to the
justifiability of denying access, and the two dimensions of
the test
are, in this sense, inter-related.
Application
to the facts
[34]
The
Premier’s concerns appear to stem mainly from proceedings
launched in
Khula
,
resulting in a court order compelling the department and the
applicant to ensure delivery of LTSM to all public schools by 31
March 2022. The detailed report requested from the applicant on 23
March 2022 raised that issue, coupled with queries about stationery
supply to schools, the non-payment of EAs and the withholding of the
last instalment of the Education Infrastructure Grant. The
correspondence reflects that the Premier expected the applicant to
explain what steps she had taken to prevent these occurrences.
The
response received took the form of a letter coupled with three
annexed reports, which were perused and considered. The Premier
formed the view that the explanations contained in the letter and the
reports were unresponsive to the thrust of the concerns that
had been
raised. Under-expenditure was highlighted as being unacceptable. The
Premier explained his intention to institute an investigation
to
determine whether the applicant should face a case of ‘misconduct,
negligence and / or poor performance’ and that
the applicant
may be placed on precautionary suspension pending the completion of
the investigation.
[59]
The
applicant was given an opportunity to provide reasons why this should
not occur. Her response returned to the reports she had
already
provided and she argued that her presence could not jeopardise any
investigation. On her own version, textbook delivery
was at that
point at 97% and, on the issue of EAs and GSAs, ‘we have
covered all payments except the last run that Treasury
withheld for
March 2022. The non-payment of EAs as well as the current status
together with how in future this matter is going
to be dealt with …
we are on 97% expenditure on the infrastructure grant … Had
Treasury not withheld our upload,
we would have been on 100%
expenditure …’
[35]
The
Premier’s answering affidavit describes the matters which form
the basis of his concerns regarding the applicant as follows:
[60]
‘
Firstly,
it is alleged that Dr Mbude made herself guilty of misconduct and in
particular negligence which had catastrophic consequences
for the
Department in that departmental employees did not receive their
salaries timeously, learners did not receive stationery
and text
books timeously and the Department forfeited more than R200 m
(received by way of a conditional education infrastructure
grant) due
to underspending by the Department.’
[36]
Her
responses were considered to have deflected blame and to have
advanced various excuses. She was appointed as the accounting
officer
and held ultimate responsibility for the administration of her
department. The allegations were very serious, amounting
to
maladministration, and needed to be thoroughly investigated by an
independent investigating team.
[61]
The Premier proceeded to deal with each of the three main areas of
concern. In particular, on his understanding of the facts, the
applicant had failed to take the necessary steps to ensure the
timeous delivery of textbooks and stationery to schools, which led
to
the decision in
Khula
.
That order made specific reference to failures that amounted to a
violation of constitutional rights, and the first and second
respondents’ plan for delivery in that matter was set aside.
That on its own, as far as the Premier was concerned, would
constitute misconduct:
[62]
‘
In
particular what will have to be determined is whether Dr Mbude was
negligent in allowing the state of affairs to rise. As mentioned
above, the Court order appears to make it clear that Dr Mbude has
committed misconduct by concluding an unconstitutional agreement
to
the detriment of learners.’
[37]
There can be little doubt that the facts at
the Premier’s disposal had provided him with prima facie reason
to believe that
the applicant, the accounting officer of the
department, had committed serious misconduct in one form or another.
The litigation
in
Khula
,
and its outcome, certainly provided the scaffold for this view. This
preliminary understanding is enough to meet the first leg
of the
test. Her response, in the form of the letter sent together with the
accompanying reports, were considered and did not convince
the
Premier otherwise.
[38]
Terms
of reference for an investigation were then crafted by the
Director-General. The team contained seven officials from the
Department of Treasury and two from the Office of the Premier. It was
envisaged that members of the team would be granted access
to
interview any relevant official of the department. The Premier’s
view was that it would be untenable for the applicant
to remain in
office whilst a subordinate managed and coordinated cooperation with
the investigating team. This might impact upon
the investigation
negatively, bearing in mind that the applicant, as accounting
officer, would be in a position to influence, interfere
and frustrate
the investigation. Subordinates may also be disinclined to cooperate
with the investigation and might fear reprisal.
[63]
[39]
These statements clearly evince the
Premier’s belief that the presence of the applicant in the
workplace might jeopardise
the investigation to be instituted. That
investigation was already within his contemplation when he
corresponded with the applicant.
Considering the nature, likelihood
and, in particular, the seriousness of the alleged misconduct,
described above, the Premier’s
belief was reasonable and this
denial of access to the workplace must be justifiable. The second
dimension of the test is, as a
result, also satisfied. It is also
clear that the applicant’s precautionary suspension that
followed is directly linked to
the pending investigation process,
which encompasses consideration of possible misconduct and negligence
on the part of the applicant.
Remaining
issues
[40]
The applicant’s written responses to
the Premier’s concerns make no reference to any abuse of power
or mala fides on
his part. Her challenge on the papers to a breach of
contract fails in the absence of reference to any particular term,
and was
in any event not seriously pursued during argument. Clause
4.5 of the employment contract, referenced in the papers, deals with
‘termination of employment’, rather than suspension, and
states only that ‘In the case of incapacity and misconduct,
the
Employer shall deal with the Employee, in accordance with the
relevant labour legislation and any directive issued by the
Minister.’
[41]
The
applicant concedes that the Premier had the power to suspend her. Her
close working relationship with the second respondent
does not change
that position. While it was an MEC who drove the suspension
proceedings in
Gradwell
,
that cannot mean that any suspension by a Premier, who is authorised
to perform this function, should be set aside if the process
leading
to the suspension has not involved the MEC.
[64]
As to the main allegation of abuse of power and
unconstitutional conduct, there is simply no factual foundation laid
to
support these serious allegations. The applicant’s
contention that the Premier has admitted to not reading and
considering
the reports she had prepared, so that he could not have
applied his mind, is a far-fetched interpretation of one sentence of
the
Premier’s affidavits. The alleged abuse of power is based,
in part, on this reading. The applicant’s conclusion that
the
Premier is ‘misleading this Court, under oath …’,
based on this supposed discrepancy is completely unfounded.
[42]
The
applicant also made much of the composition and activities of the
investigation team to further support her claim of abuse of
power.
This was a new case made out in reply and stands to be rejected.
[65]
A proper application of the applicable test does not require ‘any
investigation’ to take a specific form or conduct
its work on a
timeline specified to the satisfaction of the person being
investigated. As indicated, once the Premier formed the
prima facie
view that there existed allegations of serious misconduct, the
further question to be addressed prior to upholding
the suspension is
whether he held a reasonable belief that her presence in the
workplace might jeopardise ‘any investigation’
into that
misconduct, which has been found to be the case. Should subsequent
events demonstrate that the investigation itself has
taken a form
that is unfair or prejudicial to the applicant, she may be entitled
to seek the appropriate relief for that infringement
in future.
Assessing that matter at this stage is premature. On a proper
application of the test, the composition of the investigation
team,
their terms of reference and manner in which the investigation has
commenced is not a basis for finding the suspension to
be invalid,
unconstitutional or unlawful.
[43]
As to the applicant’s uncertainty as
to the precise reason for her suspension, and whether this was based
on misconduct, negligence
or poor work performance, the short answer
is that the applicable test makes this issue irrelevant for present
purposes. The investigation
was within the Premier’s
contemplation at the time of the suspension. He was concerned that
her presence might compromise
the investigation and that concern was
justifiable given the nature, likelihood and seriousness of the
alleged misconduct. The
requirements of para 2.7 of the SMS Handbook
were accordingly fulfilled. It is uncertain whether the applicant
will be charged,
and whether any charges will relate to misconduct or
negligence. The applicant is clearly aware that investigation of poor
work
performance typically assumes a different form. Any
uncertainties on her part will be clarified in due course and do not
aid the
notion that her suspension must be set aside.
[44]
Applicants
contemplating a similar course in future would do well to heed the
following remarks of the Labour Appeal Court in
Gradwell
:
[66]
‘
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA. The
respondent in this case instead sought a declaratory order
from the
Labour Court in terms of s 158(1)
(a)
(iv)
of the LRA to the effect that the suspension was unfair, unlawful and
unconstitutional. A declaratory order will normally be
regarded as
inappropriate where the applicant has access to alternative remedies,
such as those available under the unfair labour
practice
jurisdiction. A final declaration of unlawfulness on the grounds of
unfairness will rarely be easy or prudent in motion
proceedings. The
determination of the unfairness of a suspension will usually be
better accomplished in arbitration proceedings,
except perhaps in
extraordinary or compellingly urgent circumstances. When the
suspension carries with it a reasonable apprehension
of irreparable
harm, then, more often than not, the appropriate remedy for an
applicant will be to seek an order granting urgent
interim relief
pending the outcome of the unfair labour practice proceedings.’
[45]
There is public interest in swift and
efficient investigation of allegations of mismanagement or misconduct
on the part of high-ranking
public servants responsible for service
delivery. The applicant was appointed to the crucial position of Head
of the Department
of Basic Education in the province. Serious issues
have been raised regarding the circumstances that resulted in the
delay of delivery
of textbooks and stationery, the embarrassment
caused by the late payment of EAs, the impact of the withholding of
the education
infrastructure grant for the province, and the
associated negative publicity and reputational damage to the
Provincial Government.
It is understandable that the Premier would
not want the investigation instituted to be conducted while the
applicant remains in
office. The applicant suffers limited
prejudice in consequence. She remains on full pay and her suspension
will be for a
limited duration. In all these circumstances, the
applicant’s suspension, far from being a knee-jerk reaction on
the part
of the Premier, is lawful and valid.
Costs
[46]
The
Constitutional Court has confirmed that an unsuccessful litigant
engaged in constitutional litigation against the state ought
not to
be ordered to pay costs as a general rule. The rule has, in the
context of an attack on a statutory provision, been articulated
as
follows:
[67]
‘
[O]ne
should be cautious in awarding costs against litigants who seek to
enforce their constitutional right against the State …
lest
such orders have an unduly inhibiting or “chilling”
effect on other potential litigants in this category. This
cautious
approach cannot, however, be allowed to develop into an inflexible
rule so that litigants are induced into believing that
they are free
to challenge the constitutionality of statutory provisions in this
Court, no matter how spurious the grounds for
doing so may be or how
remote the possibility that this Court will grant them access. This
can neither be in the interests of the
administration of justice nor
fair to those who are forced to oppose such attacks.’
[47]
In
Affordable
Medicines Trust and Others v Minister of Health and Another
,
[68]
the Constitutional Court explained that costs should not be awarded
against the applicants unless the litigation could be described
as
‘frivolous’ or ‘vexatious’, or if conduct on
the part of the unsuccessful litigant deserved censure
in the form of
a costs order.
[69]
The
ultimate goal is to do that which is just having regard to the facts
and circumstances of the case.
[70]
Further details as to the appropriate balance to be struck, and the
basis for this, have been provided by the Constitutional Court
in
Biowatch
Trust v Registrar Genetic Resources and Others
(‘
Biowatch
’)
:
[71]
‘
The
rational for this general rule [that if the government wins, each
party should bear its own costs] is three-fold. In the first
place it
diminishes the chilling effect that adverse costs orders would have
on parties seeking to assert constitutional rights.
Constitutional
litigation frequently goes through many courts and the costs involved
can be high. Meritorious claims might not
be proceeded with because
of a fear that failure could lead to financially ruinous
consequences. Similarly, people might be deterred
from pursuing
constitutional claims because of a concern that even if they succeed
they will be deprived of their costs because
of some inadvertent
procedural or technical lapse. Secondly, constitutional litigation,
whatever the outcome, might ordinarily
bear not only on the interests
of the particular litigants involved, but on the rights of all those
in similar situations. Indeed,
each constitutional case that is heard
enriches the general body of constitutional jurisprudence and adds
texture to what it means
to be living in a constitutional democracy.
Thirdly, it is the state that bears primary responsibility for
ensuring that both the
law and state conduct are consistent with the
Constitution. If there should be a genuine, non-frivolous challenge
to the constitutionality
of a law or of state conduct, it is
appropriate that the state should bear the costs if the challenge is
good, but if it is not,
then the losing non-state litigant should be
shielded from the costs consequences of failure.’
[48]
Importantly,
Biowatch
confirms
that courts should not easily find reasons for deviating from the
general approach of not awarding costs against an unsuccessful
litigant in proceedings against the state, where matters of ‘genuine
constitutional import’ arise.
[72]
It is not enough to merely allude to sections of the Constitution or
to simply allege that the litigation is constitutional in
nature. The
issues must be ‘genuine and substantive’ and ‘truly
raise constitutional considerations relevant
to the
adjudication’.
[73]
[49]
The
further exceptions have been detailed in
Lawyers
for Human Rights v Minister in the Presidency and Others
.
[74]
A court must consider the ‘character of the litigation and [the
litigant’s] conduct in pursuit of it’, even where
the
litigant seeks to assert constitutional rights. ‘Vexatious’
litigation is ‘frivolous, improper, instituted
without
sufficient ground, to serve solely as an annoyance to the defendant’.
It is initiated without probable cause by a
person who is not acting
in good faith to annoy or embarrass an opponent. Legal action that is
not likely to lead to any procedural
result is vexatious. A
‘frivolous complaint’ has no serious purpose or
value.
[75]
As will be
illustrated, however, it is unnecessary to consider these further
exceptions in this instance.
[50]
The
meaning of ‘constitutional matters’ must include within
their purview disputes as to whether any conduct is inconsistent
with
the Constitution and, as a result, unlawful and invalid.
[76]
They must also be of ‘genuine constitutional import’.
There is Constitutional Court authority for the view that matters
that turn only on the facts in the application of established legal
principles should not be favoured with this label. As Madlanga
J put
it in
Mbatha
v University of Zululand
:
[77]
‘…
in
a scenario where it is clear that the substance of the contest
between the parties is purely factual, it cannot be said to raise
a
constitutional issue purely because an applicant says it does …
a constitutional issue remains one even if it may turn
out to be
unmeritorious. That is not the same as saying that what in essence is
a factual issue may somehow morph into a constitutional
issue through
the simple facility of clothing it in constitutional garb.’
[51]
In
Minister
of Safety and Security and Another v Schuster
,
[78]
the SCA came to the conclusion that suing the police for damages for
wrongful arrest and detention is not the same as testing one’s
constitutional rights, concluding as follows:
‘
This
case turned solely on the facts … To apply the “
Biowatch”
principle in such cases would open the floodgates for opportunistic
claims which may nevertheless fall short of being categorised
as
“frivolous” or “vexatious”. It would promote
risk-free litigation. The potential consequences are deeply
disturbing. To deprive the successful appellants, the Minister and
the NDPP, and, by extension, the fiscus itself, of costs in
the
present matter would be unjust and inequitable. It would also lack a
rational foundation.’
[52]
Considering
the character of the present litigation and the issues raised on the
papers, I am unconvinced that genuine and substantive
matters of
constitutional relevance have been in focus. There was no
constitutional right that was applicable or invoked. Many
of the
claims on the papers, including the suggestion of breach of contract,
the argument that the MEC should have played a role
in the suspension
process and the artificial reading of the Premier’s
consideration of the applicant’s responses, were
specious and
not argued from a constitutional perspective. The applicant’s
replying papers changed tack and concentrated
heavily on the
complaints about the shaping of the investigation, linked to the
notion of a possible abuse of power. As indicated,
application of the
appropriate test for considering the validity of a suspension, in
terms of the SMS Handbook, makes this irrelevant.
Gradwell
amounts to clear authority and established legal principle that was
left unchallenged, to be interpreted and applied to the facts
of this
matter. The applicant was also obliged to accept the Premier’s
power to suspend her, the main focus of the dispute
being the manner
in which this power had been exercised. The remaining arguments
advanced, in addition to being far-fetched, cannot
be said to have
truly raised constitutional considerations relevant to the resolution
of the dispute. The sporadic invocation of
ss 1 and 237 of the
Constitution was perfunctory and without genuine engagement with
their substance. There has certainly not been
any enrichment of the
general body of constitutional jurisprudence, because the matter is
in fact not authentically concerned with
constitutionality. Finally,
the Premier’s position, the concerns he held, the approach he
had adopted and his reasons for
not wanting the applicant to remain
at work were all explained in his correspondence, to be reiterated in
his answering affidavit.
He was met with an unfounded, serious
allegation of an abuse of power and a contrived invocation of the
Constitution as part of
an application claiming urgent final
relief.
[79]
In all these
circumstances, I consider it appropriate to deviate from the
Biowatch
principle.
[53]
Both the applicant and the Premier made use
of two counsel. Given the strict timeframes, the range of issues
canvassed in the papers
and the importance of addressing allegations
of abuse on the part of the Premier, the use of two counsel is
justified. The end
result is that the application is dismissed with
costs, to include the costs of two counsel where so employed.
Order
a.
The matter is heard on an urgent basis in
terms of Rule 6(12) of the Uniform Rules of Court.
b.
The application is dismissed with costs, to
include the costs of two counsel where so employed.
_________________________
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:26
April 2022
Delivered:03
May 2022
Appearances:
Counsel
for the Applicant :
Mr Mokutu SC and Mr Madiba
Instructed
by
: T.L
Luzipho Attorneys
26 Cnr Victoria &
Madeira Street
1
st
Floor
Steve Motors Building
Mthatha
Email:tlluziphoattorneys@telkomsa.net
Respondent’s
Counsel:
Mr Kroon SC and Mr Ndamase
Instructed
by
: The State Attorney
17
Fleet Street
Old Spoornet
Building
East London
Email:Ltyani@justice.gov.za
[1]
See
Khula
Community Development Project v The Head of Department, Eastern Cape
Department of Education and Others
(Eastern Cape Division of the High Court, Makhanda) (unreported,
case number 611/2022) (‘
Khula
’).
[2]
Pp
49-50 of the index. It might be added that on 25 March 2022, the
applicant deposed to an explanatory affidavit in the
Khula
matter,
included in the papers. This followed a court order compelling the
department and the applicant to ensure delivery of
the LTSM to all
public schools by 31 March 2022. That affidavit included the
applicant’s explanations for the non-delivery
of stationery to
certain schools.
[3]
Pp120-121
of the index.
[4]
P 22 of the index,
paras
35, 36 of the founding affidavit.
[5]
The
MEC, Eastern Cape Department of Basic Education and the Government
of the Eastern Cape Province were both cited as respondents
in that
matter: p 242 of the index. That matter dealt mainly with textbooks
and stationery and not with the other matters that
formed the basis
of the Premier’s correspondence to the applicant: p 242 of the
index.
[6]
Pp
128-129 of the index.
[7]
Pp
132-133 of the index.
[8]
See
Baloyi
v Public Protector and Others
2021 (2) BCLR 101
(CC) at paras 5, 6, 37-50.
[9]
Stellenbosch
Farmers Winery v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C) at 235E-G.
[10]
Uniform Rule 6(12)
(a)
.
[11]
Luna
Meubel Vervaardigers v Makin and Another
1977
(4) SA 135
(W) at 136H-137F.
[12]
Uniform
Rule 6(12)
(b)
.
Also see
Kati
v MEC, Department of Finance, Eastern Cape Province
(unreported case no. 929/2006) (High Court of South Africa, Bhisho)
at 9.
[13]
See
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
[2011] ZAGPJHC 196.
[14]
See
Hultzer
v Standard Bank of SA (Pty) Ltd
(1999)
20
ILJ
1806 (LC) at 1809: ‘The court will, however, only grant such
relief where an applicant is able to persuade the court that
extremely cogent grounds for urgency exist.’
[15]
Mokoena
v West Rand District Municipality and Others
(unreported
case no 39460/19) (High Court of South Africa, Gauteng Local
Division, Johannesburg) para 27.
[16]
Moyane
v Ramaphosa and Others
[2018]
ZAGPPHC 835;
[2019] 1 All SA 718
(GP). Also see
Hotz
and Others v University of Cape Town
2018 (1) SA 369
(CC) para 15.
[17]
In the context of an unlawful suspension, this may include some
explanation as to why the remedies provided for in the LRA would
not
provide adequate redress in due course:
Mokoena
v West Rand District Municipality and Others
supra
para 32.
[18]
Apleni
v The President of the Republic of South Africa and Another
[2018]
1 All SA 728
(GP) para 7: ‘The point of law is that the Second
Respondent has no power to suspend him from his position as
Director-General.
Only the First Respondent (referring to the
President) can do so …’
[19]
Para
15 of the founding affidavit, p 17 of the index. Also see
Mokoena
v West Rand District Municipality and Others
supra
para 31.
[20]
Apleni
v The President of the Republic of South Africa and Another
supra
fn 18 para 9.
[21]
Para
77 of the founding affidavit, p 32 of the index.
[22]
Pp
33-37 of the index, including reference to an attempt to settle the
matter.
[23]
Paras
104-109 of the founding affidavit, pp 37-40 of the index.
[24]
I
might add that in a number of the older cases cited in the footnotes
to follow, courts have dismissed applications based on
lack of
urgency, or gone on to deal with the merits even where there is a
lack of urgency, when the appropriate remedy is to
strike a
non-urgent matter from the roll. In any event, that the Premier may
have requested the matter’s dismissal rather
than a striking
is peripheral, the final outcome of the application resting in the
hands of the court.
[25]
Ntabankulu
Local Municipality v South African Municipal Workers Retirement Fund
and Others
(
Unreported
case no 1052/2021) (Eastern Cape Division, Grahamstown) para 26.
[26]
Association
of Mineworkers and Construction Union and Others v Northam Platinum
and Another
2016
(37)
ILJ
2840 (LC) para 23. Also see
Gallocher
v Social Housing Regulatory Authority and Another
(2019) 40
ILJ
2732 (LC) paras 11-19.
[27]
Also
see
Tshaedi
v Greater Louis Trichardt Transitional Council
[2000] 4 BLLR 469
(LC) para 11.
[28]
Mabilo
v Mpumalanga Provincial Government and Others
(1999)
20
ILJ
1818 (LC) para 24.
[29]
Zwakala
v Port St John Municipality and Others
2000
(21)
ILJ
1881 (LC) at 1883 F-G.
[30]
Mangena
v Nelson Mandela Metropolitan Municipality and Another
(unreported
case no. 3655/2004) (High Court of South Africa, South Eastern Cape
Local Division) para 41.
[31]
Cf
Mogothle v The Premier of the North West Province and Another
(unreported
case no J 2622/08) (Labour Court) para 47, dealing with the personal
and social consequences of suspension other than
deprivation of
remuneration, and the link between the freedom to engage in
productive work and the right to dignity. The authority
relied upon
for that linkage is
Minister
of Home Affairs and Others v Watchenuka and Another
2004 (4) SA 326
(SCA), a case dealing with a vulnerable category of
persons, namely asylum seekers.
[32]
Mabentsela
v The Premier of the Eastern Cape Province NO and Others
(unreported
case no. 142/06) (High Court of South Africa, Bhisho) paras 19-20.
[33]
The
principle set out in
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C) at 235E-G was applicable given that the second
respondent disputed the allegation, so that the version of the
second respondent
prevailed.
[34]
Long
v South African Breweries (Pty) Ltd and Others
(2019)
40
ILJ
965 (CC) para 25.
[35]
Magashule
v Ramaphosa and Others
[2021]
3 All SA 887
(GJ) para 113.
[36]
Para
2.7(2)
(c)
of the SMS Handbook. See
MEC
for Education, North West Province Government v Gradwell
(2012)
33
ILJ
2033
(LAC) (‘
Gradwell
’)
para 44.
Cf
Mogothle v The Premier of the North West Province and Another
(unreported case no J 2622/08) (Labour Court) para 47, dealing with
an instance of ‘indefinite leave’, suggesting
an
indefinite period of suspension.
[37]
Mogothle
v The Premier of the North West Province and Another
[2009]
ZALC 1
; 2009 (30)
ILJ
605 (LC) para 48.
[38]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
[2011]
ZAGPJHC 196 para 7.
[39]
Rule
6(12)
(b
).
[40]
Zwakala
v Port St John Municipality and Others
supra
fn 29 at 1883 F-G.
[41]
Mosiane
v Tlokwe City Council
[2009]
8 BLLR 772
(LC) para 17.
[42]
New
Nation Movement NPC and Others v President of the Republic of South
Africa and Others
[2019]
ZACC 27
para 8, cited with approval in
Rokwil
Civils (Pty) Ltd and Others v Le Seuer NO and Others
[2020] ZAKZDHC 61 para 17.
[43]
This
line of reasoning finds some support in
Mogothle
v Premier of the North West Province
and
Another
supra
fn
37 para 47, where Van Niekerk J, with reference to
Minister
of Home Affairs and Others v Watchenuka and Another
supra fn 31, highlighted the non-pecuniary consequences of
suspension for an applicant, including the link between the freedom
to engage in productive work and its relationship with the right to
dignity.
[44]
See
Gallocher
v Social Housing Regulatory Authority and Another
(2019) 40
ILJ
2732 (LC) para 3, citing
Booysen
v Minister of Safety and Security and Others
(2011) 32
ILJ
112 (LAC) para 54.
[45]
Apleni
v The President of the Republic of South Africa and Another
supra
fn 20 para 10.
[46]
For
reasons that become apparent, there is no need to consider the
Premier’s second preliminary point, that the dispute
about a
suspension is quintessentially a labour-related matter, so that it
does not amount to administrative action and / or
the exercise of
public power, in any detail.
[47]
S
12(1)
(b)
of the Act. The Premier confirms that he has not delegated the power
to suspend a head of department to the second respondent:
p 183 of
the index.
[48]
P 18 of the index,
para
20 of the founding affidavit.
[49]
See
Gradwell
supra fn 36 para 5. As that judgment explains, the terms and
conditions of the senior management of the public service, from
the
level of director upwards, are not regulated by collective
bargaining, but are determined by the Minister for the Department
of
Public Service and Administration by means of subordinate
legislation issued in terms of the Public Service Regulations, 2001,
which determinations are referred to and known as the ‘SMS
Handbook’. The ministerial determinations in respect of
misconduct proceedings are contained in chapters 7 and 8 of the SMS
Handbook.
[50]
Gradwell
supra
fn 36 para 24.
[51]
Gradwell
ibid
para 25.
[52]
Gradwell
ibid
paras 28, 30-31.
[53]
Gradwell
ibid
para 30.
[54]
Long
v South African Breweries (Pty) Ltd and Others
(‘
Long
’)
[2018] ZACC 7.
[55]
Long
ibid
para 24.
[56]
South
African Breweries (Pty) Ltd v Long and Others
(‘
SAB
’)
[2017] ZALCPE 36 paras 53, 54. The court supported authority that
held that the key aspect in determining the fairness
of the
suspension is whether the employer had, based on the nature of the
allegations, formed a view that the allegations were
so serious as
to warrant a suspension. It found that for a precautionary
suspension to be fair, it must be directly linked to
a pending
investigation or process, whether related to misconduct, incapacity
or operational requirements. The court found that
it was not
necessary for the employer to substantiate the misconduct or
complaints against the employee at this stage. ‘All
that is
required is a reasonable belief on the part of the employer that it
exists, even if such belief may be subjective.’
[57]
Para
25 (references omitted). The Labour Court added that the suspension
must serve to protect the integrity of the investigation
or process,
or mitigate risks to the employer whilst such an investigation or
process is ongoing:
SAB
ibid para 53
et
seq
.
[58]
Gradwell
supra
fn 36 para 28.
[59]
See
p 221 of the index: ‘In the notice of intention to suspend I
made it abundantly clear that allegations of misconduct
including
negligence, were being investigated. The suspension letter, which
itself refers to the notice of intention to suspend,
must clearly be
read in this context.’ Also see p 222: ‘Self-evidently
if allegations of misconduct are being investigated
then the
investigators will determine whether the allegations amount to
misconduct or whether, perhaps, they do not rise to that
level and
may constitute poor performance. However, in this matter, I have
made it very clear that the primary allegations which
are being
investigated are those pertaining to misconduct and negligence.’
[60]
P
186 of the index.
[61]
P
187 of the index.
[62]
P
173 of the index.
[63]
P
197 of the index.
[64]
Such
a suggestion is untenable and unsubstantiated by any evidence: see
South
African Legal Practice Council v Bobotyana
[2020] 4 All SA 827
(ECG) para 76.
[65]
See
para 46 of the founding affidavit, p 27 of the index.
[66]
Gradwell
supra
para 46.
[67]
Motsepe
v Commissioner for Inland Revenue
[1997] ZACC 3
para 30.
[68]
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005]
ZACC 3
para 138.
[69]
In
Biowatch
Trust v Registrar Genetic Resources and Others
[2009] ZACC 14
(‘
Biowatch
’)
para 24, the Constitutional Court used the term ‘manifestly
inappropriate’ to explain this reason for deviation
from the
typical rule. In
Lawyers
for Human Rights v Minister in the Presidency and Others
[2016]
ZACC 45
para 18, the Court, in addition to ‘frivolous’
and ‘vexatious’, referred to ‘improper motives’
or where there are other circumstances that make it in the interests
of justice to order costs.
[70]
Ibid
.
[71]
Biowatch
supra
fn
69 para 23.
[72]
Biowatch
supra
fn 69 para 24.
[73]
Biowatch
ibid
para 25. Also see
Harrielall
v University of KwaZulu-Natal
[2017] ZACC 38
para 11: the rule applies in the case of genuine
‘constitutional matters’ involving organs of state,
rather than
only in the case where a right in the Bill of Rights is
in issue.
[74]
Lawyers
for Human Rights v Minister in the Presidency and Others
supra
fn 69.
[75]
Lawyers
for Human Rights v Minister in the Presidency and Others
ibid
para 19.
[76]
S
v Boesak
[2000]
ZACC 25
para 14.
[77]
Mbatha
v University of Zululand
[2013]
ZACC 43
paras 221, 222.
[78]
Minister
of Safety and Security and Another v Schuster and Another
[2018]
ZASCA 112
[79]
See
Turnbull-Jackson
v Hibiscus Court Municipality and Others
[2014] ZACC 24
para 35.