About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2017
>>
[2017] ZANCHC 48
|
|
Northern Cape Urban Tvet College v Phahlane (243/2017) [2017] ZANCHC 48 (2 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: 243/2017
Heard
on: 11/05/2017
Delivered
on: 02/06/2017
In the matter
between:
NORTHERN CAPE
URBAN TVET
COLLEGE
APPLICANT
And
JOHN
PHAHLANE
RESPONDENT
JUDGMENT
MAMOSEBO J
[1] This
is the extended return date of a Rule Nisi granted by Erasmus AJ on
10 March 2017 on an urgent basis. The issues
for determination
are:
1.1
Whether the Rule Nisi should be confirmed or discharged; and
1.2
Which party, if any, should be held liable for the costs of the
application.
[2] The terms of the Rule Nisi
granted by Erasmus AJ are amongst others:
2.1
That the Respondent is interdicted and prohibited from entering,
and/or be interdicted and prohibited
from interfering with the
administration and/or day to day running of the Applicant’s
functions, and/or be interdicted and
prohibited from
contacting, threatening, assaulting or intimidating any of the
Applicant’s employees employed at the
following places:
2.1.1
The Applicant’s Central Office situated at 37 to 41 Long
Street, Kimberley;
2.1.2 The Applicant’s
City Campus situated at Cullinan Crescent, Kimberley;
2.1.3
The Applicant’s Moremogolo Campus situated at 777 Nobengula
Road, Kimberley;
2.1.4
The Applicant’s Phatsimang Campus situated at John Daka Street,
Kimberley.
2.2
That the Respondent be interdicted and prohibited from
threatening, assaulting, intimidating
and/or contacting, either
personally or telephonically, the following employees of the
Applicant: Mr Clifford Freddie Barnes;
Mr Solomon Miti; Mr Brand;
Ms Mary van Rensburg; Mr Neo Manong; and Mr Elgin
Mokokong;
2.3
That the South African Police Service be directed and authorised to
take all reasonable and necessary
steps to give effect to this order.
2.4
That the Respondent be ordered to pay the costs of the application on
an attorney-and-client scale
.
3.
The order contained in 2.1 to 2.3 above serve as an interim interdict
with immediate effect,
pending the finalisation of this
application.
[3]
The applicant is the Northern Cape Urban TVET (Technical Vocational
Education & Training) College established in terms of
the
Continuing Education and Training Act, 16 of 2006, with its head
office situated at Central Office 37 – 41 Long Street,
Kimberley. The respondent, Mr John Phahlane, is a lecturer who is
employed by the Department of Education and rendered his services
to
the college.
[4]
Although the respondent had raised the issue relating to the
locus
standi
of Mr Clifford Barnes, the principal of the college who is
responsible for its management and administration, in his answering
affidavit
his counsel, Adv Eillert, submitted that the issue was
abandoned, correctly so in my view. Dr BE Nzimande, MP: Minister of
Higher
Education and Training addressed a letter to the respondent
dated 07 March 2017 and said,
inter alia,
the following:
“
In
accordance with the Department’s delegations signed by the
Minister on 14 July 2015, Principals are delegated the authority
to
handle matters for officials from Salary Level 1 – 8 and Post
Level 1 – 3 at Colleges. Therefore it should be specified
that
the College Principal (Dr CF Barnes) has jurisdiction over your
matter.”
[5]
The background to this application is that the respondent was
appointed as a computer science lecturer on the 27 February 2012.
A
disciplinary enquiry was held against him in 2015 for which he faced
11 charges of misconduct. The charges entail,
inter alia
,
that he sent an e-mail to a staff member stating:
“
he
is not going to let her sodomise him without Vaseline” and “you
behave like prior 1994 madams”.
On
11 September 2015 he accused another colleague on e-mail of using
witchcraft and being racist; on 07 August 2015 when served
with a
warning letter for wearing an African National Congress T-shirt to
work which, was against policy, he crumpled the letter
and threw it
in the trash bin and at the same time shouting at a colleague who
delivered the letter to him. He referred to the
warning letter as
rubbish. When admonished wearing the ANC T-shirt he replied that he
was employed by the Department and not by
the college and the college
policies do not apply to him. Other charges were
insubordination and putting the college into
disrepute.
[6]
The respondent was suspended from work on 18 September 2015 on full
pay pending the finalisation of the disciplinary process.
He was on
the same day served with a letter of suspension ordering him to leave
the college premises before 12h00. He refused to
sign for receipt
thereof. The security personnel could not evict him from the premises
until the assistance of the South African
Police Services (SAPS) was
enlisted and intervened.
[7]
During October 2016 the respondent was found guilty on 8 out of the
11 charges. The sanction of immediate dismissal was imposed
on him.
He lodged an appeal internally with the Department of Education as
the process permitted him to do within the prescribed
period.
[8]
Dr Nzimande wrote in the last paragraph of the letter referred to in
para 4 (
supra
) to the respondent informing him that:
“
Therefore,
after a careful consideration of the deliberations and recommendation
by the Appeal Committee, I hereby confirm the sanction
as pronounced
by the Presiding Officer to dismiss you with immediate effect. As
such, your appeal is hereby dismissed.”
[9]
Mr Eillert submitted that the
specified incidences and/or the unacceptable conduct addressed above
attributed to the respondent
did not just happen in a vacuum but the
stopping of the payment of his salary coupled with the manner the
applicant dealt with
the matter under the circumstances, were
contributory factors to be taken into consideration. Counsel
conceded, however, that his
client’s conduct was not
justifiable but sought to convince me that in the exercise of my
discretion I should discharge the
rule.
[10]
Adv Van Tonder, arguing for the college, submitted that there are no
reasons why the respondent should continue to enter the
premises of
the college or to contact any person, particularly its listed
personnel. Counsel correctly pointed out that the respondent
conceded
in his answering affidavit to being confrontational. It had to take
the intervention of the SAPS on two occasions to remove
him from the
college premises. The respondent acknowledges that when he became
angry he screamed and shouted at the personnel.
[11]
The applicant’s contention is that the purpose of the
application was to protect the college and its employees from the
violent and aggressive behaviour of the respondent. What exacerbated
matters was that some learners failed a subject because the
respondent had failed to submit their scripts. When requested
to do so by Ms Gathrie his response was that there were more
urgent
issues to discuss than marking the scripts. The scripts had not been
submitted even at the stage that the disciplinary enquiry
was
conducted.
[12]
The college is an environment for higher learning and accommodates
both employees and learners. The conduct of the respondent
impacted
negatively to the environment of learning and teaching and thereby
infringed the rights of the learners and the personnel.
Adults need
to inspire learners with positive attributes and good leadership
qualities.
[13]
It is trite that for a final interdict to be granted three
requirements which must be present are: (1) a clear right; (2) an
act
of interference; and (3) no other remedy. The applicant has
persuasively argued that the right it seeks is to safeguard the
interests of its employees and the learners against the violence and
aggression displayed by the respondent. Since the outcome
of the
unsuccessful appeal against his dismissal from employment by the
college there is therefore no justification for him to
be on its
premises. The respondent’s past conduct has demonstrated a high
level of interference, disturbance and impudence
which obliged the
intervention of SAPS on at least two occasions to have him removed
from its premises. See
Setlogelo v Setlogelo
1914 AD
221
at 227. Regard being had to the circumstances of this case
I am satisfied that the applicant cannot be protected by any other
remedy and therefore this application ought to succeed because all
the requirements for a final interdict are met.
[14]
I now deal with the
question of costs
.
When Erasmus AJ granted the rule on 10 March 2017 she ordered that
costs of proceedings of 9 March 2017 shall be costs in the
application. Mr Van Tonder asked that the order for costs should
include those that were ordered to be costs in the application:
10
February 2017, 17 February 2017, 24 February 2017, 09 March 2017, 07
April 2017 and 11 May 2017. I agree. However, I am
not
satisfied that the applicant has made out a case for the costs to be
on a scale as between attorney and client. See
Nel
v Waterberg Landbouwers Ko-operatieve Vereeniging
1946 AD 597
at 607.
[15]
In the result the following order is made:
1.
The R
ule
Nisi
is
confirmed
.
2.
The respondent
is ordered to pay costs of this application which should include the
costs for 10 February 2017, 17 February 2017,
24 February 2017, 09
March 2017, 10 March 2017, 07 April 2017 and 11 May 2017 on a party
and party scale.
_____________________
MAMOSEBO J
NORTHERN CAPE HIGH COURT
For
the applicant:
Adv AG Van
Tonder
Instructed
by:
Engelsman
Magabane Inc
For the respondent:
Adv A Eillert
Instructed by:
Geoff Smith Attorneys