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[2019] ZAECMHC 14
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Fihlani v Ingquza Hill Local Municipality and Others (652/19) [2019] ZAECMHC 14 (12 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case No: 652/19
NOT
REPORTABLE
In
the matter between:
MLULEKI
FIHLANI
Applicant
and
INGQUZA
HILL LOCAL MUNICIPALITY
First Respondent
MPOFANE
TENYANE
Second Respondent
MBONGENI
ISAAC NKUNGU
Third Respondent
THE
ACTING MUNICIPAL MANAGER
INGQUZA
HILL LOCAL MUNICIPALITY
Fourth Respondent
JUDGMENT
TOKOTA
J:
[1]
This application consists of two components namely, Part A and Part
B. In Part
A the applicant seeks, apart from the prayer for
costs, on an urgent basis, an interim order directing the first
respondent to
permit him to discharge his duties as Municipal Manager
thereof together with an order restraining the first respondent from
taking
unlawful steps the effect of which would be to strip the
applicant of his authority as Municipal Manager, pending the review
in
Part B of the notice of motion. In Part B he seeks an order,
first, reviewing and setting aside his suspension from duty and,
second,
reviewing and setting aside the decision to appoint the third
respondent as the first respondent’s chief whip and removing
the second respondent as a chief whip. This court is only concerned
with Part A and Part B is to be determined at a later stage.
The
application is opposed by the first respondent, third and the fourth
respondents.
[2]
The factual matrix leading to the application can be summarised as
follows: The applicant
is employed by the first respondent as a
Municipal Manager. His current contract of employment commenced on 1
August 2017 and will
come to an end on 31 July 2022.
[3]
On 7 August 2018 the Council of the first respondent convened a
meeting. During the
proceedings of the meeting chaos ensued. It is
not clear from the papers at what stage this occurred. The police
were called. There
is a serious dispute of fact as to whether any
resolution regarding the removal of the second respondent as chief
whip and the
appointment of the third respondent in his stead was
taken in that meeting. The applicant states that such resolution was
never
taken. He has attached unsigned minutes to reflect that the
meeting was disrupted before any such resolution was taken. The first
respondent maintains that the resolution was taken even before the
disruption. It has attached signed minutes of the day which
indicate
that it was taken.
[4]
The applicant was later instructed to implement the resolution. He
refused to implement
the decision stating that it was unlawful. He
was then called upon to advance reasons why he should not be
suspended. I assume
that he responded to such invitation. His
response however is not attached to the papers.
[5]
On 12 February 2019 he was served with a letter of suspension. The
suspension is for
a period of three months pending the completion of
an investigation and possible disciplinary action to be taken against
him. The
basis of suspension was that it was alleged that he had
committed a gross misconduct of insubordination having refused to
implement
the Municipal Council’s decision of 7 August 2018. He
has since been served with a notice of disciplinary enquiry which is
to take place on 8 March 2019.
[6]
The applicant contends that the suspension was unlawful by virtue of
the fact that
the resolution which he was instructed to implement was
invalid. The aspect of the validity or otherwise of either the
suspension
or the instruction has still to be determined at later
hearing. Since I am not called upon to decide that aspect I will
refrain
from commenting thereon. I now proceed to consider urgency of
the matter.
Urgency
[7]
When an applicant believes his matter to be urgent, his/her
Counsel/attorney can sign
a certificate of urgency setting out the
basis upon which the matter is believed to be urgent. The duty Judge
will then make a
directive as to the further conduct of the matter.
That directive does not dispense with the duty of the applicant to
show in the
papers good grounds why the matter should not be dealt
with in the ordinary motion roll. In my view the directive does not
deprive
the court hearing the matter of the power to decide urgency.
[8]
Once an applicant has decided that his matter is one of urgency, he
may himself decide,
without consulting any other parties, what times
to allow affected parties for entering appearance to defend and for
delivering
answering affidavits. In the absence of a directive from
the duty Judge, as in this case, he may then arrange with the
registrar
a date for hearing. In that event the applicant must allow
other parties a reasonable time to file any opposing affidavits, if
so minded. He/she must also allow reasonable time for the Judge to
read and prepare for the hearing. The papers must be indexed
and
paginated. Unlike most of the cases in this court, the applicant
considerately set the time table for the filing of papers
by those
minded to oppose it and set the date of hearing as 5 March 2019. In
my view he was entitled to do so as he believed the
matter to be
urgent.
[9]
In the exercise of its judicial discretion the Court has the power to
abridge the
times prescribed by the rules of court and to accelerate
the hearing of matters upon sufficient and satisfactory grounds being
shown by the applicant. The major considerations normally are three
in number, viz the prejudice that applicant might suffer by
having to
wait for a hearing in the ordinary course; the prejudice that other
litigants might suffer if the application was given
preference; and
the prejudice that respondent might suffer by the abridgment of the
prescribed times and an early hearing.
[10]
In
PFE International and Others v Industrial Development
Corporation of South Africa Ltd
2013 (1) SA 1
(CC)
Para 30
it was stated thus:
'Since the rules are
made for courts to facilitate the adjudication of cases, the superior
courts enjoy the power to regulate their
processes, taking into
account the interests of justice. It is this power that makes every
superior court the master of its own
process. It enables a superior
court to lay down a process to be followed in particular cases, even
if that process deviates from
what its rules prescribe. Consistent
with that power, this court may in the interests of justice depart
from its own rules.'
[11]
In this matter the only ground for urgency is the suspension of the
applicant. He contends that
the suspension infringes upon his
integrity and dignity. He contends further that the suspension has a
connotation of corruption
on the part of the suspended employee. Mr
Bodlani, appearing for the applicant, argued that by remaining on
suspension the applicant
will miss an opportunity of working towards
achieving bonus performance. In any event I am not called upon
at this stage
to uplift the suspension. Although I do not agree that
suspension is a ground for urgency I have decided to exercise my
discretion
and deal with the application.
[12]
The suspension of an employee from work is a
precautionary measure aimed at ensuring that the employer can
conduct
an investigation of the allegations unhindered by the interference of
the employee concerned. Whilst the employee is on
suspension the
employer is not confined to investigate only the transgressions set
out in the suspension letter. Mr Bodlani argued
that the witnesses in
the insubordination charges form the component of the applicant’s
employer. Consequently there is no
room for an interference with
them.
[13]
Ms Allen for the respondents argued that Mr Bodlani’s argument
overlooks the fact that
there are other charges that have been added.
These charges will involve employees who are juniors to the
applicant. In my view
the argument is relevant to the suspension. I
am not called upon to uplift the suspension. What needs to be
considered is
whether the applicant is entitled to the mandatory
interdict claimed in his first prayer and the prohibitory (interim)
interdict
claimed in the second prayer. I will therefore proceed to
consider whether on the papers the applicant has satisfied the
requirements
for an interim interdict.
Requirements
for an interim interdict.
[14]
The requirements for an interim interdict are trite and can be
briefly summarised as follows:
a prima facie right even though open
to some doubt; a well-grounded apprehension of irreparable harm if
the interim relief is not
granted; that the balance of convenience
favours the granting of an interim interdict; and the lack of another
satisfactory or
adequate remedy in the circumstances.
Prima
facie right even though open to some doubt.
[15]
The question is whether the applicant has, despite his suspension,
shown that he has a right
to be allowed to resume his duties as
Municipal Manager. The suspension of an employee is a prerogative of
an employer. Before
doing so, the employer must consider whether the
presence of the employee concerned at workplace is undesirable regard
being to
the nature and seriousness of the allegations against him,
whether there is likelihood that he may jeopardise the integrity of
the investigation or pose danger at workplace.
[16]
Generally it is the duty of an employee when rendering his services
to act exclusively in the
interests of the employer. Therefore his
conduct when rendering services should never result in him promoting
his private interests
or other person’s interests. An employee
has a duty to give full and conscientious effect to the employer's
lawful and reasonable
instructions and not frustrate and thwart
legitimate instructions. The applicant is a senior manager and ought
to set an example
to other employees. He deliberately refused to obey
the instruction on the basis that it was unlawful. As pointed out
above the
lawfulness or otherwise of the instruction remains to be
decided on review. In my view whilst he is still on suspension and
whilst
the validity of that suspension is still to be determined the
applicant has no right to be allowed to go and perform his duties.
[17]
Lest it be said that there are prospects of success on review and
therefore the applicant has
shown a prima facie right which needs
protection pending that review, I can put it no better than the
constitutional court where
it was stated thus:
“
[48] At the
outset the high court had to decide whether the applicants had
established a prima facie right, although open to some
doubt. It
examined the grounds of review and was persuaded that they bore
prospects of success and that therefore the applicants
had
established a prima facie right to have the decisions reviewed and
set aside. Two comments are warranted. First, we heard full
argument
on the merits on the grounds of review. I am unable to say without
more that they bear any prospects of success. That
decision I leave
to the review court.
[49] Second, there is
a conceptual difficulty with the high court's holding that the
applicants have shown 'a prima facie right
to have the decision
reviewed and set aside as formulated in prayers 1 and 2'. The right
to
approach a court to
review and set aside a decision, in the past, and even more so now,
resides in everyone. The Constitution makes
it plain that '(e)veryone
has the right to administrative action that is lawful, reasonable and
procedurally fair' and in turn
PAJA regulates the review of
administrative action.
[50] Under the
Setlogelo test the prima facie right a claimant must establish is not
merely the right to approach a court in order
to review an
administrative decision. It is a right to which, if not protected by
an interdict, irreparable harm would ensue. An
interdict is meant to
prevent future conduct and not decisions already made. Quite apart
from the right to review and to set aside
impugned decisions, the
applicants should have demonstrated a prima facie right that is
threatened by an impending or imminent
irreparable harm. The right to
review the impugned decisions did not require any preservation
pendente lite.”
[1]
(footnotes omitted).
There is no evidence that
the applicant is likely to commit unlawful acts in the future which
require an interdict. The suspension
is for a limited period of three
months.
A
well-grounded apprehension of irreparable harm if the interim relief
is not granted.
[18]
In the founding affidavit the applicant argues that until his right
not to be unlawfully suspended
is determined and if the
status quo
remains the first respondent will perpetuate its unlawful conduct. He
contends that he is currently in a situation of harm and
it is
foreseeable that the same will continue indefinitely unless this
court intervenes. This contention loses sight of the
fact that
the suspension is not indefinite. It is for three months. In the
charge sheet there are charges relating to misuse of
funds and abuse
of power. The applicant being in a senior position may jeopardise the
disciplinary process having unlimited access
to the records of the
first respondent. I am not persuaded that he may suffer irreparable
harm if the interim interdict is not
granted.
The
balance of convenience.
[19]
In
National Treasury v Opposition to Urban Tolling Alliance
2012
(6) SA 223
(CC
) it was said:
“
(w)hen a court
weighs up where the balance of convenience rests, it may not fail to
consider the probable impact of the restraining
order on the
constitutional and statutory powers and duties of the state
functionary or organ of state against which the interim
order is
sought.
[2]
The learned Judge
delivering the majority judgment went on and said:
“
While a court
has the power to grant a restraining order of that kind, it does not
readily do so, except when a proper and strong
case has been made out
for the relief and, even so, only in the clearest of cases.”
[3]
[20]
The general rule is that the employer has the right to control and
direct how, when and where
the services are to be rendered by its
employees. The employee’s duty to obey lies at the heart of the
employment relationship.
Obedience implies discipline, discipline
implies rules, and rules, to be effective, imply the power to impose
sanctions on those
who break them.
[4]
The court has no right to tell the employer to allow its employees to
perform their duties. That function falls within the ambit
of
employer’s obligation. If the employer acts contrary to its
prescripts the employee has different remedies depending on
the
nature of the transgression by its employer. The courts will
refrain from entering into the domain of the exercise of
power by an
employer unless it is shown that intervention is necessary. In this
case the first respondent is permitted by both
the contract of
employment and legislation to suspend its employees under certain
circumstances such as gross insubordination.
Lack
of another satisfactory or adequate remedy.
[21]
It has not been argued that there is no other satisfactory remedy for
the applicant to warrant
the grant of the interim interdict. In the
light of the above it is unnecessary to make a finding in this
regard.
[22]
In my view the applicant has not satisfied the requirements of an
interim interdict and his application
cannot succeed.
[23]
What remains is the question of costs. The general rule is that costs
must follow the result.
Nothing emerges from this matter warranting a
deviation from this principle.
[24]
In the result I make the following order.
1.
The application for an interim interdict is dismissed with
costs.
_________________
B
R TOKOTA
JUDGE
OF THE HIGH COURT
For
the applicant: Adv Bodlani
With
him Adv N Klaasman
Instructed
by Sakhela Inc.
For
the first, third and fourth respondents: Adv K Allen
Instructed
by Jafta Inc.
Date
Heard: 5 March 2019
Date
judgment delivered: 12 March 2019.
[1]
See
National Treasury v Opposition to Urban Tolling Alliance
2012
(6) SA 223
(CC) para.
[2]
Para.47
[3]
Ibid
para.65
[4]
Grogan
Workplace 12
th
edition 2017 p127