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[2013] ZAFSHC 132
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Marogoa v South African National Taxi Council and Another (460/2013) [2013] ZAFSHC 132 (18 July 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case Number: 460/2013
In
the matter between:
OLEHILE
CALVIN MAROGOA
..............................................................
APPLICANT
and
SOUTH
AFRICAN NATIONAL TAXI COUNCIL
.........................
1
ST
RESPONDENT
PROVINCIAL
TAXI COUNCIL
....................................................
2
ND
RESPONDENT
_____________________________________________________
HEARD
ON:
30 MAY 2013
_____________________________________________________
JUDGMENT BY:
MHLAMBI, AJ
DELIVERED ON:
18 JULY 2013
_____________________________________________________
INTRODUCTION
[1] The Applicant approaches the court
for an order in the following terms:
[1.1] That the resolution of the 28
th
March 2012, in terms whereof the 2
nd
Respondent’s
Provincial Executive Committee resolved to serve the Applicant with a
Notice of Suspension be declared unlawful
and invalid;
[1.2] That the 2
nd
Respondent’s General Secretary’s Notice of Suspension
dated 02
nd
April 2012, in terms whereof the Applicant was
suspended be declared unlawful and invalid;
[1.3] That the Applicant’s
suspension by the Respondent/s in terms of the Notice mentioned in
paragraph 2 above together with
all subsequent decisions and actions
be declared unlawful and invalid;
[1.4] That the Respondents be directed
to re-instate the Applicant into his position as a National Executive
Member and/or a General
member of the Respondents and their
substructure and/or Affiliates;
[1.5] That the Respondents be
interdicted from interfering with the Applicant in the execution of
his duties or responsibilities
as a member of the Respondents and/or
all their sub-structure and/or affiliates;
[1.6] That the Respondent/s be
directed to pay to the Applicant all his remuneration and/or
allowance retrospective to the date
of his suspension, and to
continue to do so in terms of the Constitution and/or Rules and/or
policies of the Respondents;
[1.7] Directing the First and/or
Second Respondent/s to pay the costs of this Application individually
and severally on attorney
and client scale, the one paying the other
to be absolved;
[1.8] Further and/or alternative
relief.
[2] A Notice of Intention to oppose
was filed by both First and Second Respondents on 25 February 2013,
but no answering affidavits
were filed. Consequently Applicant set
the matter down for hearing on 30 May 2013 on the unopposed roll.
[3]
BACKGROUND
On 2 April 2012 a letter from the
General Secretary of the South African National Taxi Council
(SANTACO), Free State, was addressed
to the chairperson/secretary of
All Regional Structures and Associations which reads as follows:
“
Re:
Notice of Suspension
We regret to inform you that in a
special meeting held on the 28
th
March 2012, the PEC
resolved to serve Mr O. C. Marogoa with a Notice of Suspension due to
his continued unacceptable conduct. The
PEC held two previous meeting
trying to resolve this matter without any success.
The said PEC meeting of the 28 March
2012 then resolved as follows regarding Mr. Marogoa’s conduct.
That his conduct constitutes a bridge
of our Code of Conduct.
That his conduct brought the PTC into
disrepute.
That as an NEC Member, his case be
handed over to the National Structure to handle.
Thank you for your consideration”.
[4] According to the Applicant, he did
receive this letter as well as subsequent correspondence from the
Secretary General of the
First Respondent advising the Applicant of
the rescheduling of the disciplinary action to be held at 10h00 on 22
June 2012.
[5] On 22 June 2012, the disciplinary
hearing was held.
[6] On 17 July 2012 the Applicant
addressed a letter to the Deputy Secretary General enquiring about
the verdict. The letter reads
as follows:
“
Re:
Disciplinary Hearing
On the 22
nd
June 2012 I was
called in for disciplinary hearing, short notice as it was, I
complied by attending.
It is now eighteen (18) working days
and I need to know when will I be informed of the verdict as per
hearing.”
[7] Another letter of enquiry dated 1
August 2012 was addressed to the President of the First Respondent.
No response was received
to both letters:
[8] Unable to elicit a response,
Applicant approached his attorneys who addressed a letter of demand
to First Respondent. Parts
of the letter read as follows:
“
After
consultation and perusal of all the documents submitted to us and the
Law as well as your own Constitution, we advised him
that your
conduct and/or that of the institution is both unfair and unlawful.
We, in the light of all of the above,
have instructions to demand from you and/or your office, as we hereby
do, not only the upliftment
of the alleged suspension with immediate
effect, but also a copy of the code of conduct and the record of the
alleged hearing within
five(5) days of receipt hereof, failing which,
further action will be taken against you and/or the institution
without further
Notice, in which event you and/or the institution
will be liable for all costs incurred in relation thereto.”
[9] The grounds upon which this
application is based are briefly set out in paragraph 6 of the
founding affidavit as follows:
[9.1] He is a taxi owner operating six
(6) taxi’s and has been in the industry for more than thirty
(30) years.
He is an Executive member of both the
Respondents and as such entitled to be informed and attend all
meetings of the Respondents.
He was not informed and consequently
never attended meetings.
[9.2] The Respondents are governed by
a Constitution which binds and enjoins them to observe its policies.
The Respondents failed
to observe and adhere to these policies.
[9.3] He was suspended by the
Provincial Council and not the National Executive Council of the
First Respondent as required by the
Constitution.
[9.4] He was neither furnished with
the particulars of the allegations against him nor afforded the
opportunity to present his case
before the alleged suspension. The
notice to attend the hearing was too short and never afforded him the
opportunity to prepare.
He was also not furnished with a charge
sheet.
[9.5] He has, to date, not been
informed of the outcome of the hearing.
[9.6] He has, since date of
suspension, not received any remuneration and/or allowance.
[10] During the disciplinary hearing
which was held on 22 June 2012, he was informed that the verdict
would be communicated to him
in due course. Despite addressing two
letters dated 17 July 2012 and 1 August 2012 to the national body, no
response was forthcoming.
[11]
EVALUATION
[11.1] In my view, it stands like a
pole above water that the Applicant, who willingly subjected himself
to and attended the disciplinary
hearing, is disgruntled because of
the failure of the Respondents to furnish him with the outcome of the
disciplinary hearing.
[11.2] Clause 7 of Santaco’s
Constitution reads as follows:
“
7.1 The NEC
may terminate or suspend the membership of any Member where such
Member has failed to comply with the provisions of
this Constitution
or is guilty of conduct which has brought or is likely to bring
SANTACO into disrepute, provided that:
7.1.1 Such Member shall be furnished
with written particulars of such alleged failure or conduct;
7.1.2 Such Member shall be afforded
the opportunity of presenting its/his/her case;”
[11.3] During argument, I pointed out
my concerns as to the relief sought to Mr Khang, who acted on behalf
of the Applicant. Having
reserved judgment, I caused a letter to be
addressed to Mr. Khang, inviting him to make submissions as to
whether the facts in
the affidavit do not warrant an order on the
following terms:
“
Compelling
Respondents to furnish the Applicant with the verdict of the
disciplinary hearing that was held on 22 June 2012 within
2 (two)
weeks from the date of the order, failing which the Applicant may
approach this Court on the same papers, duly amplified,
if so
advised, for an order setting aside the suspension.
If so, whether the Court is entitled
to grant such an order in the circumstances.
The submissions mentioned above should
be filed within 7 (seven) days from date of this letter, failing
which the Court would proceed
to give judgment.”
[11.4] To date, no response has been
received from Mr Khang.
[12]
CONCLUSION
I am not convinced that the facts set
out in the affidavit warrant an order as per the prayers in so far as
the suspension in the
instant matter is preventive as opposed to
punitive and the disciplinary hearing has already taken place. The
constitutional clause
relied upon to assail the suspension herein
regulates punitive suspensions. It is so that the main thrust of the
Applicant’s
dissatisfaction is the failure to deliver and
communicate the verdict of the disciplinary hearing to the Applicant.
He is entitled to be informed of the
outcome to enable him to decide on his future actions. The
intransigence of the Respondents
cannot be entertained as the
Applicant is entitled to know his fate.
[13]
COSTS
In the result, the costs should follow
the event.
[14]
ORDER
I therefore make the following order:
First and Second Respondents must
furnish the Applicant with the verdict of the disciplinary hearing
that was held on 22 June
2012 on/before 6 August 2012, failing which
the Applicant may approach this Court on the same papers, duly
amplified if he is
so advised, for an order setting aside the
suspension.
Both Respondents, jointly and
severally, the one paying, the other to be absolved, to pay
Applicant’s costs.
________________
J.J. MHLAMBI, AJ
On
behalf of applicant: Mr M Khang
Instructed
by:
Mphafi
Khang Inc
BLOEMFONTEIN