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[2014] ZAFSHC 199
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Mpelo v Minster of Police and Another (4190/2014) [2014] ZAFSHC 199 (23 October 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 4190/2014
In
the matter between:-
VUYELWA
MPELO
….............................................................................................................
Applicant
and
THE
MINISTER OF DEFENCE
….................................................................................
1
st
Respondent
OFFICER
COMMANDING, AIR FORCE BASE,
BLOEMSPRUIT
…..........................................................................................................
2
nd
Respondent
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
16
SEPTEMBER 2014
DELIVERED
ON:
23
OCTOBER 2014
INTRODUCTION
[1]
This is an opposed urgent application for an interim interdict. The
applicant brought this application on an urgent basis in
order to
secure a stay of execution of a sentence imposed on the applicant by
the Court of Military Appeal. The respondents opposed
the
application. The matter was heard on 16 September 2014. I delivered a
ruling on that day dismissing the application with costs.
I was
subsequently requested to provide reasons for my ruling. These are
those reasons.
[2]
The applicant sought an order in the following terms:
2.1
Non-compliance with the Uniform Rules of Court relating to forms,
service and time period are condoned and the matter is heard
as an
urgent application.
2.2
Non-compliance with the provisions of section 35 of the General Law
Amendment Act 62 of 1955 as condoned.
2.3
That the Honourable Court will grant a rule
nisi
which calls upon the first and/or second respondents to give reasons,
if any, on 6 November 2014 at 9H30 why the following orders
will not
be granted.
2.4
The first respondent and or the second respondent is/are ordered
and/or directed to stay the execution of the sentence imposed
on the
applicant, namely of “Dismissal from the South African National
Defence Force” issued by the court of a senior
Military Judge
on 21 February 2014, under case number 37/2014 Bloemfontein, and
upheld by the court of Military Appeals CMA28/2014,
pending
finalisation of this application.
2.5
The order in the aforementioned paragraph 2.4 serves as an interim
interdict with immediate effect pending finalisation of litigation
to
be instituted by the applicant against the first and/or second
respondent.
2.6
The first respondent to be ordered to pay the costs of this
application
2.7
The second respondent be ordered to pay the costs of this
application, if opposed.
[3]
The applicant intended lodging a review application. The said review
application was not before me.
FACTS
[4]
The applicant was employed as the corporate communications officer,
with the military rank of major, at the Air Force Base Bloemspruit,
in Bloemfontein, in the employ of the first respondent.
[5]
The applicant was instructed by the then officer commanding of the
Air Force Base, Bloemspruit, Colonel Opperman, to conduct
a board of
enquiry into certain internal matters. She was appointed as the
president of the board of enquiry. WO1 Martin
and WO2 Louw were
appointed as members of the board of enquiry.
[6]
On 1 September 2009, both WO1 Martin and WO2 Louw, together with the
applicant travelled to Cape Town to interview witnesses
and obtain
statements from them. They were booked at Sonskyn Guesthouse by
Sergeant U I Johnson, who was responsible for
the administration of
all subsistence and transport allowance and claims at Air Force Base,
Bloemfontein.
[7]
The applicant and her two colleagues were meant to book
accommodation at Sonskyn Guesthouse, from 1 September to 3 September
2009. Air Force Base, Bloemspruit gave the applicant a cash
advance to enable her to pay for all the necessary expenses.
In
addition an amount of R1 500, 00 was advanced to the applicant
as payment of accommodation at Sonskyn Guesthouse.
[8]
It is common cause that the applicant slept at Sonskyn Guesthouse,
only the first night, which was 1 September 2009. For the
remaining
two days, namely 2nd and 3
rd
September 2009 the applicant slept at her mother’s house in
Cape Town.
[9]
According to the applicant, she gave WO1 Martin an amount of R1 500,
00 in cash in an envelope to pay for her accommodation
in advance for
period from 1
st
to 3
rd
September 2009. When the applicant enquired about the receipt
from WO1 Martin, he assured the applicant that everything was
in
order.
[10]
On 7 September 2009, the applicant was provided with a subsistence
and transport allowance form for signature. The document
was
completed by the subsistence and transport clerk, Sergeant Johnson.
The applicant signed the document as she was satisfied
that the
information thereon was correct.
[11]
On 17 November 2009, WO1 Martin requested the applicant to complete
another set of forms regarding the trip to Cape Town.
These
documents reflected the period used for accommodation from 1 to 4
September 2009. Sergeant Johnson explained to the
applicant
that the previous document was incorrect and the amount which was
advanced to the applicant to pay for all the expenses
had been
deducted from the applicant’s salary. The applicant
filled in the second set of subsistence and allowance
documents so
that the amount deducted from her salary could be paid back.
The said amount that was deducted from the applicant’s
salary
was paid back after the applicant signed the second set of
subsistence and allowance documents.
[12]
On 20 April 2012, Sergeant Mokhele at the Military Police informed
the applicant about a complaint of fraud lodged against
the
applicant. The latter, WO1 Martin and WO2 Louw were charged
with fraud on 29 July 2013. They pleaded not guilty
to the
charges. A preliminary investigation was conducted by Legal
Services Satellite Office (LEGSATO) in Bloemfontein.
Lipco
Legal Aid provided the applicant with a legal representative by the
name of Mr Botha. After consultation with the said
Mr Botha,
the matter was enrolled to be heard by a court of a Senior Military
Judge in Bloemfontein on 25 November 2013.
[13]
WO1 Martin, WO2 Louw and the applicant were charged with common law
fraud read with section 56 MDC, namely that:
“
IN
THAT on or about the 7
th
of September 2009 and at or near Bloemspruit, the said accused
unlawfully and intentionally with the intention to defraud, made
a
misrepresentation to the SANDF that they were entitled to claim for
accommodation at Sonskyn Guesthouse for the period of 1 –
4
September 2009 and through the said misrepresentation moved the SANDF
to pay out this claim while in truth and in fact the said
accused
knew that they were only entitled to claim for one night’s
accommodation namely the 1
st
of September 2009. The total loss to the state was R2 600,
00.”
[14]
First alternative to charge one the applicant and two others were
charged with contravention of section 46 of the Military
Disciplinary
Code “MDC”) (Conduct prejudicial to military discipline),
they were charged with common law fraud read
with sec 56 namely that:
“
IN
THAT on or about the 7
th
of September 2009 and at or near Bloemspruit the said accused
unlawfully and negligently by act or omission caused actual or
potential
prejudice to good order and military discipline in
that they were entitled to claim for accommodation at Sonskyn
Guesthouse
for the period of 1 – 4 September 2009 and through
the said misrepresentation moved the SANDF to pay out this claim
while
in truth and in fact the said accused knew that they were only
entitled to claim for one night’s accommodation namely the
1
st
September 2009 and thereby the said accused caused actual or
potential prejudice to the SANDF. The total loss to the state
was R2 600, 00.”
[15]
The applicant alleged in her founding affidavit that during the
military trial, her legal representative advised her not to
testify
as this would “open a can of worms”. The applicant
was allegedly advised to close her case without testifying.
On
21 February 2014, WO1 Martin and WO2 Louw and the applicant were
found guilty of common law fraud and not guilty of the alternative
charge. The applicant was dismissed from her position of
corporate communications officer with the military rank of major,
at
the Air Force Base Bloemspruit, Bloemfontein.
[16]
The applicant appealed the guilty finding to the Court of Military
Appeals, and she was represented by Captain Litabe. On 14
August 2014
the finding and sentence of the court of a Senior Military Judge was
upheld. Captain Litabe was allegedly not
present to address the
Court of Military Appeals on behalf of the applicant. Captain Litabe
made written submissions on behalf
of the applicant to the Court of
Military Appeals.
ISSUES
[17]
The main issue in this application is whether or not the applicant
satisfied all the requirements of an interim interdict to
empower
this court to order the stay of execution of the sentence imposed on
the applicant by her employer, pending the finalisation
of the
application for review of the Court of Military Appeals.
SUBMISSIONS
[18]
A submission was made on behalf of the applicant that first
respondent be ordered to stay execution of the sentence, as she
was
ordered to vacate her post on 16 September 2014. If the applicant had
to vacate her post, it was not known when the review
application will
be heard and finalized. Further submission on behalf of the
applicant was that the first respondent will
not suffer any prejudice
if the applicant was kept on her post. It was further submitted
on behalf of the applicant that
the applicant did not have an
alternative relief. Counsel for the applicant argued that the
applicant has reasonable prospect of
success with regard to the
review application (
Zulu v Minister
of Defence and Others
(28410/04)
(2005) SAGPHC. Counsel for the applicant further submitted that
the applicant did not have adequate legal representation
at the
Military Court. There were no submissions made on behalf of the
applicant at the Court of Military Appeals.
[19]
Counsel for the respondent argued that written submissions were made
on behalf of the applicant to the Court of Military Appeals.
The applicant was convicted of a serious offence of common law
fraud. The applicant was given an advance cash payment of
R1 500, 00 for accommodation. She stayed for one night
only at the Sonskyn guest house. She did not inform South
African National Defence Force that she only stayed for one night,
and paid only R500, 00. She should have paid back R1 000,
00 that she was given. Failure to pay back the R1 000, 00
and to disclose the true facts were in itself fraudulent.
Counsel for
the respondent referred the court to invoice number 30, attached to
the court papers on page 65. There are discrepancies
between
the original invoice and carbon copy invoice. The original invoice
indicated that an amount of R1 300, 00 was paid
for three
people. It has been indicated in the papers that the R1 300,
00 was for payment of R400, 00 each for WO1 Martin
and WO2 Louw.
The remaining R500, 00 from the R1 300, 00 was for the
applicant’s accommodation. It appeared
on the invoice
that check in was on 1/9/2009 and check out was on 4/9/2009.
Below the same invoice an amount of R3 900,
00 was written which
seemed to be for accommodation for three days. The information on
invoice number 30, was the same as information
on the carbon copy
invoice. The only difference between the two invoices was that at the
bottom of the carbon copy invoice there
was additional
information which read as follows: “
Kontant
R1 300, 00 1 nag”.
THE
LAW
[20]
Section 35 of the General Law Amendment Act no 62 of 1955 provides
that:
“
Notwithstanding
anything to the contrary contained in any law, no court shall issue
any
rule nisi
operating as an interim interdict against the Government of the Union
… unless notice of the intention to apply for
such a
rule, accompanied by copies of the petition and of the affidavits
which are intended to be used in support of the application,
was
served upon the Government … at least seventy two hours, or
such lesser period as the court may in all the circumstances
of the
case consider reasonable, before the time mentioned in the notice for
the hearing of the application.”
[21] It is trite
that the requirements of an interim interdict are as follows:
21.1
The applicant must show a
prima facie
right, an injury actually committed or reasonably apprehended, the
absence of similar protection by any other ordinary remedy and
the
balance of convenience in favour of granting the interim relief
(
Joubert NNO and Others v Maranda
Mining Company (Pty) Ltd and Others
(2010) 2 All SA 67
(GNP) para 26).
[22]
According to Schedule 8 of Labour Relations Act 66 of 1995, (LRA,
the Act)
“
any
person who is determining whether a dismissal for misconduct is
unfair should consider -
(a) whether or not the employee
contravened a rule or standard regulating conduct in, or of relevance
to, the workplace; and (b)
if a rule or standard was
contravened, whether or not-
(i) the rule was a valid or
reasonable rule or standard;
(ii) the employee was aware, or could
reasonably be expected to have been aware, of the rule or
standard;
(iii) the rule or standard has been consistently applied
by the employer; and
(iv) dismissal was an appropriate sanction
for the contravention of the rule or standard”
[23]
In
Overstrand Municipality v Magerman NO and Another
(186/2013) (2014) 35 ILJ1366 (LC) the Chief Law Enforcement and
Security official was among other charges, charged with fraud.
A
disciplinary hearing was held. In mitigation the chairperson took
into account the following factors:
23.1
A clean disciplinary record over 17 years;
23.2
The fact that the employee was appointed as head of legal enforcement
in 2009.
23.3
That his performance was good.
23.4 That the
charges were not connected to his duties.
[24]
The court in
Overstrand
(supra)
said the following:
“…
I
fail to understand how the fact that the employee had been appointed
as the head of legal enforcement in 2009 could be a mitigating
factor. If anything, that should have been aggravating.”
“
Given
the seriousness of the misconduct and the position of the employee as
chief of law enforcement, the sanction imposed by the
chairperson was
irrational and unreasonable … The mitigating factors
that he took into account do not remove the operational
need of the
municipality to ensure that senior officials in those positions are
exemplary in their conduct and can be trusted by
the municipality and
the public … If the employee were to remain in the
employ of the municipality, it would be failing
in its duties to its
ratepayers.”
24.1
The Chairperson
imposed
a sanction of a final written warning valid for 12 months on the
first charge; and suspension without pay for 10 days, coupled
with a
final written warning valid for 12 months, on the second charge.
In
Overstrand
(supra)
case, the court reviewed and set aside the chairperson’s
decision and ordered a sanction of summary dismissal of the employee.
[25]
Theft and fraud have always constituted good grounds for dismissal as
they frequently constituted a fundamental breach of the
employment
contract. The cases have, in the past emphasised, the breach of
the relationship of trust that occurs where an
employee is guilty of
such a misdemeanour (
Toyota SA Motors
(Pty) Ltd v Radebe and Others
(2000) 3 BLLR 243
(LAC). The court held as follows in
Toyota
South Africa
(
supra)
:
“
Although
a long period of service as employee will finally be a mitigating
factor where such an employee is guilty of misconduct,
the point must
be made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal. To my mind one such serious act
of misconduct is gross dishonesty.”
[26]
Zondo AJP, as he then was, quoted
Toyota
South Africa
(
supra)
in
De Beers Consolidated Mines (Pty)
Ltd v Commission for Conciliation, Mediation and Arbitration and
Others
(JA68/99) (2000) XALAC 10 (3
March 2000) and said:
“
I
am not saying that there can be no sufficient mitigating factors in
cases of dishonesty, nor am I saying dismissal is always an
appropriate sanction for misconduct involving dishonesty. In my
judgment the moment dishonesty is accepted in a particular
case as
being of such a serious degree as to be described as gross, then
dismissal
inter alia
,
an appropriate and fair sanction.
26.1
It was stated in
S v Tyers
1997 (1) SACR 261 (NC) at 267 g-h
t
hat a
morally unacceptable motive is aggravating especially where the fraud
and theft is motivated by greed or no explanation at
all (see
Piater
v S
(743
/13)
[2014] ZASCA 134
925 September 2014)
APPLICATION
OF THE LAW
[27]
The applicant failed to comply with the provisions of section 35 of
the General Law Amendment Act in that she brought this
application
less than 72 hours, under the auspices of urgency. The question
arised whether it would be proper to condone
non-compliance. I
am inclined to condone non-compliance as I am of the view that the
respondents will not be greatly prejudiced
by this decision.
[28]
The requirements for the grant of an interim interdict are trite.
The applicant alleged in her founding affidavit that
she had a
prima
facie
right on the probabilities to succeed in an application for
review application to have the finding and sentence of the Court of
Military Appeal set aside. The applicant further stated in her
founding affidavit that she had a
prima facie
right not to be
dismissed pending the finalization of the review application. I am of
a view that the applicant did not establish
a
prima facie
right, which was proof of facts which established a right in terms of
substantive law. In
Setlogelo v Setlogelo
1914
AD 221
at 227, Innes JA referred to a right which “
though
prima facie established is open to some doubt”.
It was held
in two cases reported that this phrase indicated that the court must
take into account the allegations made by both
the applicant and the
respondent in deciding whether a
prima facie
right has been
established. It is not sufficient that the applicant has in
affidavits, taken alone, made out a prima
facie
case (see
Webster v Mitchell
1948 (1) SA 1186
(W) at 1189;
Ndauti v Kgami
1948 (3) SA (W) at 35- 36).
The right asserted by the applicant in this case, is the right
to order stay of execution
of the sentence imposed on her by the
employer.
[29]
It is not sufficient for the applicant simply to allege irreparable
harm. The facts that establish an actual or well-grounded
apprehension of irreparable loss if no interdict is granted must be
set out (
Stern & Ruskin NO V Appleson
1951
(3) SA 800
(W) at 813 B).
In
casu,
I am of the view
that the applicant did not lay out sufficient facts that form the
basis of her allegation that she will suffer
irreparable harm if the
interim interdict was not granted.
[30]
The applicant for an interim interdict must establish that there was
no other alternative remedy available. The alternative
remedy
available must satisfy the following requirements, be adequate
in the circumstance, be ordinary and reasonable, be
a legal remedy
and grant similar protection
(
Per Friedman AJP in
Minister
of Law and Order v Committee of the Church Summit
(1994)
(3) SA 89)
B) at 99).
[31]
Regarding the balance of convenience the Court had to weigh up the
likely prejudice to the applicant if the interim interdict
was not
granted and later shown to have been wrong against the likely
prejudice to the respondents if the interim interdict was
granted and
the grant of the said interim interdict was shown to have been wrong.
I am not convinced that the balance of convenience
favoured the
applicant. In this regard the applicant blamed her lawyers who
represented her. It seems as if the applicant
did not want to
take any responsibility for any part in the whole process.
First she blamed one of her colleagues and then
her legal
representatives. In
Mkhize v First National Bank and
Another
(1998) 11 BLLR 1141
CLC, the court held that there
was a limit to the extent to which an applicant would blame the
negligence of her legal representatives.
Our courts have also
disregarded an excuse where a blame was cast on a legal
representative by an applicant (
Kurt Fontein v South African
Breweries
JR1583/01 and others.
31.1 The applicant
was legally represented at both the Military Court and Court of
Military Appeals. She cannot be heard to want
to benefit from her
failure to place information before court. Sufficient information
must be placed before court to enable it
to determine the appropriate
sentence. It was not explained to this court what was meant by the
applicant’s lawyer, Mr Botha
when he said that if the applicant
testified this will “open a can of worms’. I would have
expected the applicant to
take this court into her confidence and
clarify this phrase which she failed to do. There was no submission
made that the applicant
made an attempt to obtain clarification about
the “opening a can of worms” issue from
her legal
representative. I am of the view that the applicant
knew or was reasonably expected to know what “opening a can of
worms”
meant. I am inclined to draw an inference that
this phrase would have a negative impact on the applicant’s
case if
it was disclosed at the Court of Military Appeals.
[32]
As counsel for the respondent rightly submitted, should the court
order the stay of the execution of sentence and then the
review
application did not succeed, the respondents may not be able to
recover all the monies paid in the form of salaries to the
applicant. If the court ordered the stay of execution of the
sentence, and the review application became successful, the
applicant
will be able to sue the respondents for the recovery of all the money
due to her. The applicant will not be prejudiced
in the long
term if the stay was not ordered. The applicant will not suffer
irreparable harm if the relief was not granted
as she has a chance of
being reinstated if the review application was successful.
[33]
Misconduct can take many forms, but the
legal basis for dismissal is usually the same: In this case the
applicant breached the provisions
of Schedule of 8 of the LRA. These
rules are usually set out in an employee’s contract or in a
policy or a disciplinary code
of the establishment, or are
general practices in the workplace that could justify dismissal. If
an employer has not implemented
a disciplinary code, Schedule 8 of
the Code of Good Practice in the
Labour Relations Act (LRA
) will
apply, but it is generally regarded as a guideline only. Gross
dishonesty, for example, fraud, is classified as one of the
serious
misconducts.
[34]
I am of the view that the prospect of success was slim as the
applicant had been convicted of a serious offence of fraud,
which has
an element of dishonesty and deception. This was further
demonstrated by case law that fraud constituted good grounds
of
dismissal as it was considered a breach of the relationship of trust
that occurred when an employee was guilty of such a misdemeanour.
I
am satisfied that the review application that the applicant intended
lodging in this court satisfies the above requirements.
Therefore the
applicant had an alternative remedy, which was a review of the
decision of the Court of Military Appeals.
[35]
I am mindful of the decision in
Zulu
v Minister of Defence and Others
(
supra)
.
Although facts of that case seem similar to the case in question,
there are fundamental differences. Firstly, the
applicant in
Zulu
(
supra
)
was not charged and convicted of fraud. Fraud has elements of
deception and dishonesty which has a tendency of irretrievably
breaking down the employment relationship between the employer and
the employee. (
Edcon v Pillemer NO
and Others
(2009) 30 ICJ 2642
(SCA). Due to the personal nature of a contract of employment,
the fact that the relationship between the parties may have
broken
down irretrievably was one of the factors which may be taken into
account when the decision to reinstate or not was made.
In this case
the decision would have been to order the respondents to stay the
execution of the sentence imposed on the applicant.
Secondly,
the applicant in
Zulu
(
supra
)
brought the application on an urgent basis to stay execution of the
decisions she sought to have reviewed and set aside. Thirdly,
the
Senior Military Judge who presided in the Court of Chief Military
Legal Services was allegedly biased against the applicant
in that
matter. Fourthly, the Court of the Chief Military Legal Services
which convicted the applicant was allegedly not properly
composed
when it convicted the applicant. Fifthly, some part of the
proceedings were allegedly conducted in Afrikaans, the language
which
the applicant was not conversant with and not properly interpreted to
her.
35.1
I am in full agreement with what the court said in
Zulu
(
supra
)
that there were substantial grounds of review each of which touched
on the right of the applicant to a fair trial which was guaranteed
under the Bill of rights. I am not inclined to say the same
thing about the matter in question due to the reasons I have
already
stated.
[36]
There are various authorities by our courts confirming the argument
that when a senior person in an employment environment
was charged
with fraud, this was considered aggravating. In
casu,
there are aggravating factors. The applicant was a senior
employee in a position of trust. She allegedly committed
fraud
against her employer. The applicant expressed no remorse and
there has been no offer to repay her employer. (
Pienaar
v S
(564/11)
(2012) ZASCA 60.)
It
is my view that the more senior the position, the greater the need
for high levels of trust. The applicant as a senior
employee,
employed by the respondent owed the respondent a fiduciary duty of
loyalty, trustworthiness and good faith.
[37]
I have taken the applicant’s mitigating factors, into account,
including her achievements and awards. However such mitigating
factors do not remove the obligation to ensure that senior officials
in such positions are exemplary in their conduct and that
they can be
trusted by their employers.
[38]
In light of what I have said above, I am not convinced that the
applicant satisfied all the requirements of an interim interdict.
The applicant’s right, whatever it may be, had to be balanced
with the respondents’ right to have the relief sought
granted.
There was no basis to bring this application as urgent. In view of
the above I am not inclined to exercise my discretion
to grant an
interim interdict for the protection of a
prima
facie
right which I had already
indicated did not exist. I am of the view that the balance of the
requirements for the grant of an interim
interdict are not
satisfied. The applicant failed to make out a case on a balance
of probabilities for the relief sought.
[39]
I accordingly make the following order:
39.1
Non –Compliance with the provisions of section 35 of the
General Law Amendment Act is granted.
39.2 The application
is dismissed with costs.
_______________
E. K. TSATSI,
AJ
On
behalf of the applicant:
Adv. J.J. Buys
Instructed
by:
Land
V Attorneys
BLOEMFONTEIN
On
behalf of the respondents: Adv. H.
Murray
Instructed
by:
The
State Attorney
BLOEMFONTEIN