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2024
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[2024] ZAKZPHC 84
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Khoza v Greater Kokstad Municipality and Another (15408/2024P) [2024] ZAKZPHC 84 (30 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
15408/2024P
In the matter between:
SIYABONGA
KHOZA
APPLICANT
AND
GREATER KOKSTAD
MUNICIPALITY
FIRST RESPONDENT
GREATER KOKSTAD
MUNICIALITY:
SECOND RESPONDENT
DISCIPLINARY BOARD
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
The matter was brought on an urgent basis on 19 April 2024 for a rule
nisi
in terms of Part A of the notice of motion pending the
finalisation of the relief claimed in part B of the notice of motion
which
is an application to review certain actions. On 19 April
2024 when the matter came before the Court it was however by consent
adjourned in order for the parties to approach the senior civil judge
for an expedited date on the opposed motion court roll.
Also
that the disciplinary proceedings which were scheduled for 23 to 26
April 2024 be stayed pending the hearing of the application.
Costs were reserved. Although the order does not specifically
state that it was adjourned
sine die
it would appear that it
must have been adjourned
sine die
for leave to be granted to
approach the senior civil judge. The matter was then set down
for hearing on the opposed roll
on 6 June 2024.
[2]
The relief sought in Part 1 of the notice of motion is:
“
(a)
That pending the outcome of the relief to be sought in terms of Part
B of this Notice of Motion:
(i)
the findings made
against the Applicant arising out of the Second Respondent’s
report dated 18 February 2024 purportedly compiled
in terms of
Regulations 6
of the
Local Government: Municipal Finance Management
Act No. 56 of 2003
: Municipal Regulations on Financial
Misconduct Procedures in Criminal Proceedings and the decision to
charge the Applicant
with financial misconduct be and is hereby
suspended;
(ii)
the decision of the
First Respondent taken on 20 January 2024 to initiate disciplinary
proceedings against the Applicant be and
is suspended;
(iii)
the Disciplinary
proceedings initiated by notice given by the First Respondent to the
Applicant dated 12 February 2024, advising
of a purported
disciplinary enquiry be and is hereby suspended;
(iv)
the First Respondent be
and is interdicted and restrained from taking any steps pursuant to
the decision of the Second Respondent
referred to in paragraph
2(a)(i) above;
(b)
That the costs occasioned by the granting of the relief set out in
Part A of this Notice of Motion,
be and are hereby reserved for the
Court hearing Part B.”
[3]
The first issue which was taken by Respondents was that of urgency
and that the matter was not
urgent. It would appear that the
matter was not dealt with as an urgent matter but was granted an
opportunity to obtain a
preferential date from the Judge President.
The matter was then only heard in June and it appears to me that the
question
of urgency at this stage is no longer an issue. This
was also not further challenged in argument by Mr. Morane SC who
appeared
on behalf of Respondents and therefore I will not deal with
this issue any further.
[4]
Mr. Titus who appeared on behalf of Applicant referred to the
decision of Stephen Mzilozi Molala
v Metsimahalo Local Municipality
and 3 others case number 5464/2018 a Free State Division judgment
which was handed down on 20
August 2019. He submitted that this
Court was bound by that decision. Accordingly it should follow
that decision in
that case that the matter did not have to be heard
by the Labour Court and could be heard by this Court. In
support of his
submission that this Court was bound by that decision
he referred to Patmar Explorations (Pty) Ltd and others v The Limpopo
Development
Tribunal and others case no: 1250/2016 of the
Supreme Court of Appeal. He referred to paragraph 3 where it
was held:
“
This
Court will only depart from its previous decision if it is clear that
the earlier court erred or that the reasoning upon which
the decision
rested was clearly erroneous.”
He submitted that when it
refers to this court it refers to the High Court and therefore this
Court is bound by that decision.
That indeed is incorrect as
that is not what the principle of
stare decisis
sets out.
It is in actual fact set out in the summary at the start of the said
judgment where it states:
“
Stare
decisis
SCA does
not depart from its own previous judgments unless satisfied clearly
wrong/High Court/Judges in same division bound by
judgment of that
division unless satisfied clearly wrong.”
[5]
It is therefore clear applying the principle of
stare decisis
that
a judge of a division is not bound by the judgment of single judge of
another division. It is therefore not necessary
to pursue that
issue any further. Mr Titus unfortunately based his whole
argument on the decision of Molala and that this
Court is bound by
it. Although this Court is not bound by the decision it can be
considered and may be persuasive.
[6]
Mr. Titus relies on what is set out in paragraph 21 of the Molala
judgment that it could not be
correct that the High Court has no
jurisdiction to entertain interdictory relief and that only the
Labour Court has such exclusive
jurisdiction in such matters.
“
[21]
It is contended by the First Respondent that this Court has no
jurisdiction to entertain this interdictory relief
as only the Labour
court has exclusive jurisdiction. This contention cannot be
correct. At the heart of this application
is the issue of
unlawfulness of the procedure currently taking place. The
application does not seek to enforce any rights
or remedies provided
for in the Labour Relations Act. The application does not seek
to adjudicate a labour dispute or conduct
as envisaged in chapter
VIII of the Labour Relations Act. What the Applicant seeks to
achieve is to restrain the perpetuation
of the unlawfulness of the
procedure currently under way. The CCMA has no such
jurisdiction contrary to the assertion by
the First Respondent.
It is my finding that this court has jurisdiction to adjudicate an
interdictory relief where unlawfulness
is an issue.”
[7]
It was submitted that at the heart of this applications is the issue
of unlawfulness of the procedure
currently taking place. The
application did not seek to enforce any rights or remedies provided
for in the Labour Relations
Act. It does not seek to adjudicate
a labour dispute or conduct as envisaged in the Labour Relations
Act. What the
applicants sought was to restrain the
unlawfulness of the procedure that was presently being undertaken.
Applicant contends
that the disciplinary proceedings are unlawful as
he should have been charged in terms of the 2014 Regulations and in
terms of
the Local Government Disciplinary Regulations for Senior
Managers 2010.
[8]
It was held in Molala that the court was informed that the same
issues were raised before the
Labour Court. Therefore that
there was a lis pending between the same parties. It however
sets out that except for
the
ipse dixit
of counsel of First
Respondent in this regard there was nothing before court nor was
there any evidence that there was any matter
pending before the
Labour Court. The Court could not be enlightened as to when
this application in the Labour Court was initiated.
The
proceedings commenced in a disciplinary hearing and a point
in
limine
was taken that the charges related to financial misconduct
and that the 2014 Regulations accordingly applied. It is clear
from the judgment that the charges against Applicant were all for
financial misconduct. For reason which will become apparent
later it would appear that the facts of that case is different to the
present one where, in the report, mention is made of financial
misconduct, none of the charges related thereto.
[9]
Mr. Titus referred to the extract of the minutes of the meeting of
First Respondent on 6 December
2023 Annexure “SK3” where
under “items resolved” it was noted in paragraph 9.4 that
the counsel resolved
to institute an investigation on the identified
discrepancies that the possibility of the existence of an act of
serious financial
misconduct in the asset sales proceeds during the
auction of 3 to 4 May 2023 especially the none receipt of an amount
of R350 000.00.
He also referred to the minutes of a meeting on
14 December 2023 where under discussion by council “it was
registered that
they were not satisfied with the CFO’s response
after reading and understanding his written response because it was
not clear
or explained why the remainder of R350 000.00 was not
initially deposited to Municipal account but to another account by
the Auctioneer
and that they also wanted to know who was the owner of
the account that the money was deposited to.” It was then
agreed
that the investigation should continue.
[10] He
submitted that it was a preliminary investigation which was conducted
that it was resolved that the council
consider the report of the
erroneous deposit of the amount of R350 000.00 into an account which
was not that of First Respondent.
That after the Chief
Financial Officer, who is Applicant in this matter, was placed on
precautionary suspension the service provider
Riley Auction Africa
paid an amount of R350 000.00 in two instalments of R250 000.00 on 7
December 2023 and R100 000.00 on 8 December
2023 and that it was
reported to the South African Police Services.
[11] It
was further submitted that on 18 February 2024 Second Respondent
delivered a report to the speaker of
a full investigation into the
allegations of financial misconduct but no mention was made of the
Municipal Systems Act nor was
it referred to. The final report
was submitted on 18 February 2024 from the Municipal Disciplinary
Board Chair Person.
The report of the independent investigator
F W Ntombela attorneys was tabled before council on 19 January 2024.
It was submitted
that the evidence leader appended his signature on 9
February 2024, nine days prior to the recommendation of Second
Respondent
to institute disciplinary action against him, and that the
charge sheet was served on him on 12 February 2024, six days prior to
a recommendation of Second Respondent to institute disciplinary
proceedings. It was therefore submitted that the financial
misconduct regulations were not followed and accordingly it was
irregular and also that the attorney who had to do the investigation
was not qualified to do so as attorneys do not fit into that
requirement.
[12] It
was submitted that it was an unlawful act which is being challenged
and accordingly it is not bound to
proceed in the Labour Court.
What is being interdicted is an unlawful act and accordingly it can
be done in this Court and
once again he relied on the decision in the
Molala case.
[13] It
was submitted by Mr. Morane SC that there was a fundamental
difference between the facts of this case
and the Molala case which
Applicant relied upon. In the Molala case the charges all
related to financial misconduct but that
is not the position in the
present case. He submitted that there were two issues.
Firstly whether to entertain the
application relating to uncompleted
proceedings (the disciplinary hearing) and secondly whether the
financial misconduct regulations
applied.
[14] He
referred to the decision of Jiba v Minister of Justice &
Constitutional Development & Others
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC) where
it was held that there should not be intervention in uncompleted
proceedings.
[15]
The charges as set out in the charge sheet attached to the papers can
be summarised as follows. Applicant
was charged firstly with
misrepresentation in that he intentionally concealed information by
presenting the report and not disclosing
that there were outstanding
amounts due in respect of the sale of the redundant equipment.
The second charge is dereliction
of duty in that he did not take
reasonable care in his role as the executive officer upon receipt of
fraudulent information.
Thirdly that he intentionally withheld
information that there was money missing and fourthly that he
breached the employer’s
policy and procedure also relating to
the proceeds which had to be deposited by Riley Auction. The
fifth charge that he failed
to act in good faith in executing his
duties and the sixth that he brought the employer’s name into
disrepute.
[16] It
was submitted that these charges were not financial misconduct and
accordingly that the Molala decision
did not apply and the financial
regulations also did not apply. Mr. Morane SC also referred to
the disciplinary code and
proceedings in respect of Local Government
Regulations for Senior Mangers 2010, Regulation 13(1) reads:
“
A
Senior Manager has a right to refer a dispute against any
disciplinary finding and or sanction imposed on him or her at the
disciplinary
hearing to the Bargaining Council, Commission for
Conciliation, Mediation and Arbitration or a credited agency in terms
of section
133 of the Labour Relations Act 1995 (Act No. 66 of
1995).”
[17]
Accordingly that would have been his remedy and not to approach this
honourable Court. The Chairperson
of the internal disciplinary
hearing held that two point in
limine
were raised by Applicant
at the hearing namely that the decisions by council on 14 December
2023 and 19 January 2024 were not passed
by a majority and secondly
that it was financial misconduct and that the allegations had to be
referred to the Financial Misconduct
Board for investigation to
consider the report and adopting a resolution to institute a
disciplinary process. The meeting
of 14 December 2023 did not
arise before him for decision. The meeting of 19 January 2024
considered the report of F W Ntonbela
attorneys and thereafter passed
a resolution to institute disciplinary proceedings.
[18]
The disciplinary board delivered the report of the allegations
against the employee. It considered
all the reports and
recommended disciplinary steps be instituted. The Chairperson
of the Disciplinary Board expressly states
that the report of the
Independent Investigator was considered. The points in
limine
were accordingly both dismissed.
[19] It
was submitted that in paragraph 17 of the judgment in the Jiba matter
that the court should only intervene
in uncompleted disciplinary
proceedings when the circumstances are truly exceptional. In
the definitions of chapter 1 of
the Local Government Disciplinary
Regulations for Senior Managers, financial misconduct is defined as
“means any misappropriation,
mismanagement, waste, theft of the
finances of a municipality and also includes any form of financial
misconduct specifically set
out in section 171 of the Local
Government Municipal Finance Management Act 20023 (Act 56 of 2003).
It is submitted that
it was an independent presiding officer that it
was serious misconduct and the charges were not for financial
misconduct.
It was thus uncompleted as the preliminary points
raised were dismissed but the disciplinary hearing was still to
continue.
[20]
The Molala case does not bind this Court and as the facts are
different it can also be distinguished from
the present case.
Applicant in this case was not charged with any financial
misconduct but was charged with other serious
misconduct in terms of
the Disciplinary Regulations. The disciplinary hearing started
and certain points in
limine
were argued and a ruling was made
thereon. The disciplinary hearing could then have proceeded on
the specific charges.
The matter did not proceed further and as
set out above Applicant could, at that stage, then in terms of
Regulation 13(1) of the
Disciplinary Regulations, have proceeded in
terms of the provisions thereof.
[21] It
is unfortunate that the application was based upon the Molala
decision and the incorrect reliance on the
principle of
stare
decisis
. The facts, in my view, are totally different and
it is accordingly distinguishable from the facts in the present case
and
this Court is not bound by that decision.
[22] A
consideration of all the facts indicate that the charge sheet was
given to Applicant and First Respondent
was entitled to have an
investigation done. The issues which are now being raised can
be raised by Applicant in the disciplinary
proceedings when it
proceeds as the points in
limine
have been ruled on. In
my view it would be more appropriate for Applicant if he does not
want to proceed with the disciplinary
hearing which has not yet been
finalised to either follow the procedures set out in section 13 of
the Regulations which I have
referred to above or to proceed with
such relief in the Labour Court. It is a Labour issue.
The charges with which
he is being charged are issues which can be
dealt with in the Labour Court and accordingly that would be the more
appropriate court.
[23] In
respect of the issues of costs it was submitted by Applicant that the
costs be reserved for decision by
the court hearing the second part
of the relief sought in the notice of motion which relates to review
proceedings. Having
come to the conclusion that this is not the
correct forum for this matter and therefore the prospects of the
review I am in agreement
with the submission by Mr. Morane SC that
the costs issue should be decided at this stage. Accordingly I
make the following
order:
Order:
The application for the
relief in Part A of the notice of motion is dismissed with costs,
such costs to include the costs of Senior
Counsel on scale C.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED ON:
6
JUNE 2024
JUDGMENT
HANDED DOWN ON:
30
AUGUST 2024
COUNSEL
FOR APPLICANT:
MR
TITUS
Instructed
by:
MACGREGOR
ERASMUS ATTORNEYS INC.
Durban
Tel:
031 201 8955
Ref:
Mr Titus/gb/KH05/001
Email:
mpho@meattorneys.co.za
c/o
GRANT & SWANEPOEL INC
Pietermaritzburg
Email:
saxon@gsalaw.co.za
COUNSEL
FOR RESPONDENTS:
MR
MORANE SC
Instructed
by:
SM
MBATHA INC
Durban
Tel:
031 701 8015
Ref:
Mr Mbatha
Email:
reception@smmbathainc.co.za
c/o
SLK Kunene & Partners
Tel:
033 345 7760