Leburu v Lejweleputswa District Municipality and Others (445/2005) [2005] ZAFSHC 38 (17 March 2005)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2005
>>
[2005] ZAFSHC 38
|

|

Leburu v Lejweleputswa District Municipality and Others (445/2005) [2005] ZAFSHC 38 (17 March 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : 445/2005
In
the matter between:
MOTLADILLE
HERMAN LEBURU
Appellant
and
THE
LEJWELEPUTSWA DISTRICT
1
st
Respondent
MUNICIPALITY
MN
SEABAT, acting Municipal Manager
2
nd
Respondent
of
the LEJWELEPUTSWA DISTRICT
MUNICIPALITY
PROF
MZUNGULU MTHOMBENI
3
rd
Respondent
CORAM:
EBRAHIM
J
JUDGMENT:
EBRAHIM
J
HEARD ON:
10
MARCH 2005
DELIVERED ON:
17
MARCH 2005
[1] This is an
application for the confirmation of a rule
nisi
which was granted by this Court on Tuesday, 9 February 2005. In
essence the applicant seeks to interdict the third respondent from
proceeding with a disciplinary hearing pending the finalisation of a
review application which has at this point been issued but not
yet
served.
[2] The background to
this application may be summarised as follows:
“
FACTUAL
BACKGROUND
2.1 The applicant is
currently employed by the first respondent – Lejweleputswa District
Municipality, based in Welkom and referred
to in these heads as “
the
Municipality
”
– as its Manager : Corporate Services.
2.2 On 24 October 2002,
while serving as the acting Municipal Manager of the Municipality,
the applicant concluded an agreement on
behalf of the Municipality
with Dikgolabolokwe Sanitation CC (‘
DSCC
”)
to complete a programme for the eradication of the bucket toilet
system in the five local municipalities falling under the
jurisdiction
of the Municipality.
2.3 It is alleged that
the applicant had authority only to award a contract to DSCC for the
management of the programme but that,
without authority and without
complying with requisite tender procedures, he appointed DSCC also to
undertake the work itself for
the bucket eradication programme. The
cost of the work awarded – allegedly without authority – is
approximately R63 million.
2.4 The Municipality’s
financial regulations, adopted on 27 July 2002, require that the
award of a contract for the acquisition
of goods or services in
excess of R120 000,00 be done in accordance with a formal tender
procedure. The applicant has been charged
with failing to comply
with this requirement when awarding the contract to DSCC.
2.5 The applicant was
suspended with full pay pending the outcome of the disciplinary
enquiry. He was served with the charge sheet
on 17 November 2004.
2.6 The third respondent
was appointed as the independent chairperson of the disciplinary
enquiry. The enquiry first convened on
the 10
th
December 2004 but by consent between the parties and their respective
legal representatives, it was rescheduled for hearing during
the
period from 7
th
to 11
th
February 2005.
2.7 At
the enquiry, both parties were represented by attorneys (the
applicant by Mr Peypper and the Municipality by Mr Lebea).
2.8 As part of the case
for the employer, the Speaker of the Municipality, Mr Hleko, was
called as the first witness to testify in
relation to the charges
levelled against the applicant. At the tail end of Mr Hleko’s
evidence in chief, the following exchange
occurred:
‘
Mr. Lebea
:
Mr Hleko, tell this hearing what is your view on the issue of [the]
trust relationship between the municipality and Mr Leburu
[the
applicant]
should Mr Leburu
be found guilty of the charges against him?
Mr Hleko
:
Looking from the point of view of the Municipality which relies on
Mr Leburu for advice, I think it was quite a serious offence
for him
to conclude the agreement of R62 949 000,00 without following tender
procedures before appointing the service provider.
I also think that
he should have disclosed his actions to Council and seek condonation
of Council for his unauthorized action. Therefore,
trust
relationship will be lost as the Municipality will not trust him that
he will not engage in similar action in the future.
Dismissal in my
view, will therefore in the light of what I have just stated be an
appropriate penalty.
’”
2.9 An objection was
raised to this evidence by the representative of the applicant and
after argument was addressed by both legal
representatives, the third
respondent gave his ruling overruling the objection and stating his
reasons as follows:
“’
Chairperson
:
I have considered your submissions. My decision is that, I will
allow [the] question. If [sic] do not think that Mr Leburu will
suffer any prejudice which cannot be addressed sufficiently through
cross-examination. The question is speculative or dependent
on the
findings – it does not amount to admission of evidence in
aggravation. I refer the parties to clause 13.7.1.17(k) of the
contract of employment. Mr Leburu has the right to have any previous
[disciplinary] record considered only after his [guilt] has
been
proven. Mr Lebea’s question [does] not amount to [enquiring] into
the previous disciplinary record of Mr Leburu. Based on
this, the
objection is dismissed’.”
2.10 On the following day
of the hearing, that is the 8
th
February 2005, the applicant brought a formal written application for
the recusal of the third respondent on the basis of his dismissal
the
previous day of the applicant’s objection. It was alleged that
there was a perception on the part of the applicant that the
third
respondent might be biased against him.
2.11 After hearing
argument the third respondent then handed down a ruling dismissing
the recusal application and giving reasons.
In essence he found the
following:
“
2.11.1The
enquiry is a two-pronged process, examining the merits of the case
and making a finding and only then looking at the question
of a
proper sanction;
2.11.2The evidence by Mr
Hleko on the appropriate sanction for the applicant, if he were to be
found guilty, was hypothetical and
would not influence the third
respondent in coming to a balanced finding based on the totality of
the evidence.”
2.12 After the ruling was
made the applicant’s legal representative sought a postponement to
consider a possible review but this
was dismissed and he then
proceeded to cross-examine the witness, Mr. Hleko. One of the issues
canvassed in cross-examination was
the issue of the breakdown of the
relationship of trust. Hleko conceded that the relationship of trust
could only be regarded as
having broken down if the applicant were
ultimately to be found guilty by the third respondent of the
misconduct with which he had
been charged and this is apparent from
the following passage in the typed transcript.
“’
Mr Peypper
:
.. When did you lose the trust?.. (inaudible) … testified about
it yesterday, when did it happen?
Mr Hleko
:
I think if I said the trust is broken irreplaceably I was referring
to a situation if Mr Leburu had been found that he has misled
us to
end up having this problem that we are having of 60 million then that
would mean because we are talking – yesterday I said
we were a
public representation – representative and we are talking of 62
million. Now in a situation like what where somebody
has misled and
you enter into an argument [sic] that you were not intended to then
it will mean that the trust has been broken.
Mr Peypper
:
Okay, now…
Mr Hleko
:
(inaudible)
Mr Peypper
:
12h00 on 8
th
February 2004 [sic] the trust has not broken down irretrievably here
where he sits.
Mr Hle ko
:
Yes, until it is proven that he has misled us.
Mr Peypper
:
Okay, so the trust has not broken down at this stage.
Mr Hleko
:
Yes’”
2.13 On the 9
th
February 2005 the applicant brought an urgent application to this
Court for a rule
nisi
with an interim order pending the return day. The effect of the
interim order was to prevent the third respondent from proceeding
with the disciplinary hearing. A rule
nisi
was
granted and the return day fixed which was extended until today the
10
th
March when this matter was argued before me.
[3] The real issue to be
decided in these proceedings is whether the applicant has made out a
proper and substantial case in respect
of the threatened review. In
other words, insofar as the interlocutory application is concerned
whether the applicant has shown
a
prima
facie
right to the relief sought. This in turn poses the following
questions:
(a) Whether the third
respondent in dismissing the objection was wrong? and
(b) Whether dismissal of
the objection gave rise to a reasonable appreciation of bias; and
(c) Even if the third
respondent was manifestly biased towards applicant whether as a
result of this the applicant was prejudiced;
and
(d) Whether the
circumstances of the matter are so exceptional that the court should
exercise its discretion
in
media res
,
and interdict the first, second and third respondents from proceeding
with the disciplinary enquiry against the applicant.
4. 4.1 The applicant has
argued that the third respondent’s conduct in hearing evidence
relating to sanction was irregular and likened
the matter to a
criminal trial where there are two separate and distinct stages of
the enquiry namely the stage of establishing guilt
and the sentencing
stage. Mr. Kennedy, who appeared on behalf of the respondents in
this matter, referred me to the judgment of
EDDELS
(SA) (PTY) LIMITED v SEWCHARAN AND OTHERS
2000 (21) ILJ 1344 (LC) as well as the work by Professor John Grogan
entitled “Dismissal” as authority for the proposition that
as a
hard and fast rule it has never been accepted in labour law that the
two stages of the enquiry had to be distinctly and separately
compartmentalised from each other. In fact, Mr. Kennedy argued the
opposite is usually the case, that it is not unusual in labour
cases
that evidence in respect of the two stages are dealt with at one and
the same time. This in itself does not render the proceedings
irregular. Mr. Kennedy argued that where however the presiding
officer took a bold and proactive stance in order to illicit evidence
in regard to sanction during the leading of evidence on the merits of
the case, that might, depending on the circumstances, give
rise to
prejudice in the sense that it manifests bias on the part of the
presiding officer towards the person charged. He argued
however that
this was not the case in the present matter. The third respondent
dealt with the objection and application for recusal
with manifest
objectivity and sensitivity to the various principles of labour law
and evinced a proper appreciation of the principles
of natural
justice.
4.2 A further argument
advanced by the applicant’s counsel was that in dealing with the
question of the loss of trust by the first
respondent for the
applicant, the third respondent also acted in an irregular manner as
his acceptance of the evidence on the part
of Hleko, that there could
no longer be trust between the first respondent and the applicant
created the perception of bias on his,
that is the third respondent’s
part, towards the applicant. The applicant accepted and conceded the
bona
fides
of the third respondent in holding the enquiry, but argued that the
evidence relating to the breakdown of trust ought not to have
been
raised at all at that stage of the enquiry.
[5] I am of the view that
the third respondent was justified in allowing the evidence to be led
for the following reasons:
“
5.1 The
question was put specifically on a hypothetical basis namely in the
event that the applicant might in due course be found
guilty of the
misconduct.
5.2 The applicant’s
attorney was permitted to cross-examine Mr Hleko and did so
effectively, securing Mr Hleko’s confirmation
that his own evidence
that the relationship of trust faced an irretrievable breakdown would
apply only in the event that the third
respondent might in due course
find the applicant guilty of misconduct.
5.3 The applicant would
in due course be entitled if he were ultimately to be found guilty by
the disciplinary chairperson, to lead
evidence and present argument
in mitigation.”
The third respondent
was aware that it would be inappropriate to hear evidence of
previous convictions at the first stage of the
enquiry, but no such
evidence had been led against the applicant. The evidence which
had been led related to the opinion of
the witness, Hleko, as to
the consequences of a finding of guilty and that he ventured his
view that if such a finding would
have been handed down, this would
result in a breakdown in the relationship of trust and for that
reason dismissal would be appropriate.
5.5 The third respondent
also repeatedly and emphatically stressed that he was alive to the
fact that the stage of the enquiry then
being conducted related to
the question of the guilt or innocence of the applicant. The
question and answer which were controversial
were purely speculative
and would only arise in the event of the applicant’s being found
guilty and that the evidence of Hleko
to which objection was raised
did not influence him in any way in reaching his decision on the
question of guilt.
5.6 The third respondent
thus showed a proper appreciation of the issues he was called upon to
decide. He also emphasised that his
decision would be based on the
totality of the evidence.
“
5.7 The
relevant principles of labour law indicate what has to be considered
is whether the overall process is fair. This requires
a
consideration of the entire process once it has run its complete
course. It is inappropriate to consider the issue of fairness
in
isolation, at an early stage of the disciplinary enquiry.
5.8 The fact that the
third respondent allowed the question and answer
per
se
does
not constitute unfairness which would justify this Court interfering
in the midst of the disciplinary proceedings.”
[6] In my view,
accordingly no substantial and proper case has been made out for the
applicant’s claim that third respondent acted
in an irregular
manner in dismissing the objection raised and in allowing the
evidence of the breakdown of trust and the possibility
of dismissal
to be admitted. I accordingly cannot therefore find that he did not
have the ability to bring an objective and unbiased
mind to the
proceedings. There is no basis for such a finding. The contrary is
in fact apparent and accordingly the application
must fail.
[7] In the result I make
the following order:
The rule
nisi
is
discharged.
The application is
dismissed with costs such costs to include the costs of two
counsel, the matter being a serious and complex
one, the papers
lengthy and the case law in the matter involved.
[8] In passing, I would
like to express my indebtedness to Mr. Kennedy for his very helpful
heads of argument which were of great
assistance in preparing this
judgment.
_____________
S. EBRAHIM, J
On
behalf of applicant: Adv. J.P. Daffue
Instructed
by:
Lovius
Block
BLOEMFONTEIN
On
behalf of 1
st
and 2
nd
respondents: Adv. P. Kennedy SC
Instructed
by:
N.W.
Phalatsi & Partners
BLOEMFONTEIN
/sp