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[2015] ZAECMHC 3
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Lugebu v Walter Sisulu University (1589/2013) [2015] ZAECMHC 3 (29 January 2015)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 1589/2013
DATE: 29 JANUARY 2015
In the matter between:
GAMALAKHE GLADSTONE
LUGEBU
..............................................
Applicant
And
WALTER SISULU
UNIVERSITY
..................................................
1st
Respondent
Z. B.
MKOVANE
............................................................................
2nd
Respondent
THE ADMINISTRATOR, WALTER
SISULU
............................
3rd
Respondent
UNIVERSITY (PROF VAN STADEN)
JUDGMENT
BESHE, J:
[1] This matter as well as that of
Mabhovula and Another, instituted against the present respondents,
were argued together because
one issue in the Mabhovula matter
appeared to be the same as what is in issue in this matter. I however
deemed it appropriate to
prepare a separate judgment in respect of
each of the matters. Essentially the order that applicant seeks is
the following:
“2. That a rule nisi be and is
hereby issued, calling upon the Respondents to show cause, if any, on
Thursday 5 September
2013, at 10h00 why the following order should
not be made final:-
2.1 That Respondents failure to pay
applicant’s salary and other benefits to which he is entitled
as an employee of 1st Respondent
which were due on 15 June 2013 be
and hereby declared wrongful and unlawful.
2.2 That Respondents be and are hereby
ordered and directed to pay Applicant’s salary and other
benefits to which he is entitled
as an employee of the 1st Respondent
which were due of 15 June 2013, forthwith, and continue to do so on
all subsequent pay dates,
pending the exhaustion of all disciplinary
inquiry against him, which is pending before the 3rd Respondent, and
as provided for
in the conditions of service of 1st Respondent with
Applicant.
2.3 That the Respondent pay costs of
this application on punitive scale as between attorney and own
client, jointly and severally.”
[2] Applicant, a male person of Mthatha
was employed as a lecturer by the University of Transkei, the
predecessor to the Walter
Sisulu University, the first respondent in
1985. In 1997 he was appointed as first respondent’s Chief
Accountant. First respondent
is a university established in terms of
the laws of the Republic of South Africa, whose registered offices
are at the Nelson Mandela
Drive Campus, Mthatha. Second respondent is
employed by the first respondent as Acting Director. Third respondent
is the Administrator
of first respondent. The applicant annexes a
letter of appointment in respect of Doctor Nakani dated 3 April 1986
as an example
of a standard letter of permanent appointment and
residence of his conditions of employment. Paragraph 4 of the said
letter provides
as follows:
“Your conditions of service are
determined by Council and are as laid down by the University of
Transkei Act (Act 23 of 1976).
You are advised to make yourself
conversant with the contents thereof. A copy of the conditions of
service is enclosed.”
Section 13 of the University of
Transkei Act 23 of 1976 provides that:
“Subject to the provisions of
this Act, the Conditions of Service of Persons in the employment of
the University, including
the Salary Scales, Salaries, Allowances,
Leave and other privileges and the procedure to be followed in the
case of any person
on the permanent establishment who is alleged to
be inefficient or who renders himself guilty of misconduct shall be
as determined
by the Council with the approval of the Minister.”
[3] Unlike the Mabhovula matter, where
it is conceded that that the dismissal of the applicants in that
could could not stand since
the second respondent did not have the
authority to dismiss employees, there is no such concession in this
present matter. The
disciplinary proceedings appear to have been
concluded. This can be gleaned from the fact after the conclusion of
the disciplinary
proceedings an attempt was made to serve the
applicant with a dismissal letter on the 23 May 2013. It would
however seem that the
applicant was not amenable to receiving the
letter whose contents are reproduced hereunder.
“Dear, Mr Lugebu
Dismissal: Yourself
Reference is made to the disciplinary
hearing held on 5 and 6 December 2012.
Please be advised that in terms of the
said disciplinary hearing you were found guilty of dishonest conduct
related to fraud or
misrepresentation.
Accordingly this serves to inform you
that your employment with Walter Sisulu University is hereby
terminated with effect from 31
May 2013.
You are to vacate your office with
immediate effect upon receipt of this letter.
Any University property in your
possession must be returned with immediate effect. You are also
advised to contact Mr T. Moerane
on 047 502 2202 for matter (sic)
relating to your benefit claims.
Please note that you may appeal by
written presentation to the Administrator against the findings and/or
penalty: Provided that
the appeal and the reasons for appealing are
lodged in writing with the administrator within ten days of receipt
of this written
notification.
You are also advised that, should you
wish, you may refer a dispute to the Commission for Conciliation,
Mediation and Arbitration
in terms of the Labour Relations Act,
within 30 days of the dismissal.”
[4] On the 7 June 2013 the National
Education Union, Walter Sisulu University (NTEU) addressed a letter
to the third respondent
under the heading “APPEAL FOR
PROCEDURAL AND SUBSTANTIVE FAIRNESS”. The letter is twelve
pages long and concludes with
the following words:
“35. We further submit that the
hearing as a whole was flawed and unlawful in the context of the WSU
statutes and must be
declared null and void.”
There is no reference made to the
finding of the Council to dismiss the applicant.
On the 26 June 2013 third respondent
responded as follows:
“Dear Prof. Nakani
APPEAL FOR PROCEDURAL AND SUBSTANTIVE
FAIRNESS
Your submission, in the abovementioned
regard, signed on 7 June 2013 as well as my letter, dated 16 April
2013, refers.
After considering all the facts and
circumstances in this matter I am convinced that justice will be best
served by convening an
Appeal Hearing. By agreement the appeal may be
head by an impartial arbitrator appointed by the parties.
I remain committed to the fair
treatment of all employees at WSU.”
However, it appears to be common cause
that the applicant did not receive his salary on the 15 June 2013,
hence the present application.
Having heard counsel for the
applicant, Mjali J issued a rule nisi calling upon the respondents to
show cause why the following
order should not be made:
“2.1 That Respondents failure to
pay Applicant’s salary and other benefits to which he is
entitled as employee of 1st
Respondent, which were due on 15 June
2013 be and is hereby declared wrongful and unlawful.
2.2 That Respondents be and are hereby
ordered and directed to pay Applicant’s salaries and other
benefits to which he is
entitled as an employee of the 1st Respondent
which were due on 15 June 2013, forthwith, and continue to do so on
all subsequent
pay dates, pending the exhaustion of all disciplinary
internal processes available to Applicants regarding the disciplinary
inquiry
against him, which is pending before the 3rd Respondent, and
as provided for in the conditions of service of 1st Respondent with
Applicant.”
[5] In his founding affidavit,
applicant took the trouble to explain why he is of the view that the
disciplinary enquiry that was
instituted by first respondent against
him is flawed. However in view of the fact that these proceedings are
not concerned with
the validity or otherwise of the disciplinary
proceedings against the applicant, I do not deem it necessary to deal
with this aspect.
[6] It is noteworthy that nowhere in
the founding affidavit does applicant refer to his dismissal or
purported dismissal, in view
of his impugnment of the disciplinary
procedure that was employed by first respondent.
[7] In his affidavit in support of the
answering affidavit, Mr Mtuli Ndlwana states that he telephoned
applicant on the 30 April
2013 to inform him that he had in his
possession a letter of his dismissal which he was to serve of the
applicant. Applicant responded
that his union was dealing with the
matter. Further, that on the 23 May 2013 he visited applicant’s
office with a view of
serving him with the letter of dismissal. He
advised him of the contents of the letter and asked him to sign for a
copy of the
letter. Applicant however refused to accept the letter.
In my view therefore it would be fair to accept that applicant was
aware
of the action taken by first respondent to dismiss him.
[8] Respondents’ case in a
nutshell, is that in view of applicant’s dismissal, there is no
longer a question of a contract
of employment for him to enforce
against first respondent. That, until such time that the dismissal is
set aside, he is not entitled
to be remunerated by first respondent.
His right to remuneration lasted as long as he remained an employee
of first respondent.
[9] I prayer 2.2 applicant seeks the
continued payment of his salary “pending the exhaustion of all
disciplinary internal
processes available to him regarding the
disciplinary inquiry against him, which is pending before third
respondent, as provided
for in the conditions of service of first
respondent with the applicant”. (my underlining). Applicant
does not state what
he means or envisages by the “disciplinary
internal processes available to him” or what steps he has taken
in this
regard. In terms of annexure B that forms part of applicant’s
affidavit, an officer who has been charged and found guilty
of
misconduct by the Council shall have the right of appeal to the
Minister against the findings of the Council. Provided that
such
officer shall within fourteen (14) days of the date upon which he was
informed of the findings, give written notice of appeal
to the
Council. The letter that was addressed to the first respondent on 7
June 2013 by NTEU makes no reference to the applicant’s
dismissal. Nor does it seem to be a notice of appeal to the Minister
against the finding of the Council. According to the letter
of
dismissal, applicant’s attention is drawn to the options that
are open to him. Namely that he may appeal by written representation
to the Administrator against the findings and or penalty. And that he
may refer the matter to the Commission for Conciliation,
Mediation
and Arbitration in terms of Labour Relations Act within thirty (30)
days of dismissal. Even if applicant had appealed
against his
dismissal, it is now trite that such an appeal would not
automatically suspend his dismissal. As only an order of court
is
suspended by the noting of an appeal. See Nchabeleng v University of
Venda and Others (2003) 24 IJL 585 (LC) and authorities
referred to
in the judgment.
[10] Based on the aforegoing reasons, I
am not persuaded that the applicant has succeeded in making out a
case for the relief that
he seeks.
[11] Accordingly the application is
dismissed with costs, such costs to include:
(a) Reserved costs of the 20 and 27
February respectively,
(b) Costs of the application and
(c) Costs of two counsel where such
services have been employed.
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant : Adv. V Notshe SC
& Adv. Matyumza
Instructed by : MAFUNGO TSHAKA INC.
Flat No. 2 Unity Hall Building
27 Victoria Street
MTHATHA
Tel.: 047 – 531 0870 / 083
7472 386
Ref.: DMVT/nnm/LO.26
For the Respondents : Adv.: A
Redding SC & Adv.: A Bodlani
Instructed by : JOLWANA MGIDLANA
INC.
35 A Delville Road
MTHATHA
Tel.: 047 – 531 0394
Ref.: UC/pp/CIV 1629
Date Heard : 11 March 2014
Date Reserved : 11 March 2014
Date Delivered : 29 January 2014