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[2008] ZALCJHB 67
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Dladla v Council of Mbombela Local Municipality and Another (J230/08) [2008] ZALCJHB 67 (25 February 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN BRAAMFONTEIN)
CASE
NO: J230/08
In
the matter between:
JACOB
THEMBA
DLADLA APPLICANT
and
COUNCIL
OF MBOMBELA LOCAL MUNICIPALITY
1
st
RESPONDENT
MBOMBELA
LOCAL
MUNICIPALITY
2
nd
RESPONDENT
JUDGEMENT
AC
BASSON, J
[1]
The Applicant Mr. Dladla, the
Muniscipal Manager of the 2
nd
Respondent, brought an urgent
application on Friday 8 February 2008 for an order in the following
terms:
1.1
Declaring unlawful and therefore null
and void a resolution taken by the First Respondent – the
Council of Mbombela Local
Municipality (hereinafter referred to as
“the Council”) on 31 January 2008 in terms of which the
Applicant’s
special leave in terms of council resolution 4/7/3
dated 21 November 2007 is extended.
1.2
Declaring unlawful and therefore null
and void council’s resolution 4/7/3 dated 21 November 2007 in
terms of which the Applicant
was placed on special leave effective 22
November 2007 to 31 January 2008.
1.3
Declaring unlawful the Respondents’
refusal to allow the Applicant to perform his duties and access to
his office as the Municipal
Manager in terms of his employment
contract.
1.4
Permitting the Applicant to resume his
duties as Municipal Manager with immediate effect.
[2]
The application came before my learned
brother Cele, J on Friday 8 February 2008. The matter was postponed
to the following week’s
urgent roll. When the matter came
before me on Tuesday 13 February 2008, the Applicant was no longer on
“
special leave
”
but was placed, by the council, on
“
suspension
”
in terms of clause 9 of his contract
of service. The decision to place the Applicant on suspension was
taken by Council at a special
meeting on 11 February 2008. The
decision to suspend the Applicant in terms of his contract of service
was thus taken
after
the urgent application was before my
learned brother Cele, J on Friday 8 February 2008 (and postponed to
13 February 2008), but
before the matter was argued before me on 13
February 2008.
[3]
When the matter came before me on 13
February 2008, the
causa
for the urgent application, namely the
alleged unlawful decision to place the Applicant on “
special
leave
”
, had fallen
away and had been overtaken by the council resolution dated 11
February 2008 which now “
suspended
”
the Applicant in terms of clause 9 of
his contract of employment. The only matter that therefore remains to
be decided by this Court
is the issue of costs. Before turning to the
merits of the only application now before this Court, it is necessary
to give a very
brief overview of the events which culminated in this
urgent application.
Brief
exposition of the events that led to this application
[4]
The Respondents explain in their
supplementary answering affidavit that the Applicant, as the
accounting officer of the Municipality
in terms of section 55(2) of
the Systems Act no 32 of 2000, is responsible and accountable for all
income and expenditure of the
Municipality and all assets and is
responsible and accountable for the discharge of all liabilities of
the Municipality and proper
and diligent compliance with the
Municipal Finance Management Act, 2003. The Respondents aver that
they have firm reason to believe
that the Applicant has since the
inception of his appointment, failed to carry out his duties both as
head of administration of
the Municipality and as the accounting
officer of the Municipality. These concerns became acute in during
2007 when it became apparent
(according to the Respondents) that the
Applicant’s actions have compromised the ability of the
Municipality to provide for
an efficient, effective and transparent
local administration which conforms to constitutional principles and
which is financially
and economically viable. As a result of the
aforementioned concerns, the Council duly constituted a meeting on 24
October 2007
and resolved by council resolution that an independent
service provider be appointed to investigate the conduct of the
Municipal
Manager on various grounds including the Applicant’s
failure to implement council resolutions; defiance of council
resolutions;
alleged manipulation of tenders in relations to awarding
thereof and the appointment of contractors; victimization and
harassment
of council employees; failure to comply with sections of
the Municipal Systems Act and the Municipal Structures Act, 117 of
1998;
non-utilization of managers, especially senior management staff
accountable to the Municipal Manager in terms of the Systems Act
and
the Structures Act; deliberate ignorance in advising the Council on
matters which has a significant bearing on financial matters
of the
Municipality; failure to represent the Municipality on matters
related to labour disputes i.e. the CCMA; non-disclose to
council of
information, e.g. the proposal by the Bushbuckridge Local
Municipality to incorporate Hazyview into their area of jurisdiction;
failure to recognize the Executive Mayor, Executive Managers and
Political Heads by not notifying them on matter which have a
potential legal implication for Council e.g. the suspension of Mr.
Lawrence Mabasa (Senior Manager PMU). The failure on the part
of the
Applicant to properly carry out his duties as Municipal Manager in
the period prior to and leading up to the aforementioned
resolution
had a deleterious effect on the smooth and effective functioning of
the Municipality. This problem is confirmed in a
letter from the MEC
Local Government and Housing of Mpumalanga dated 14 December 2007 in
which the MEC calls on the Council to
show cause why it should not be
placed under administration.
[5]
The person appointed to carry out the
investigation is a certain Mr. Nkosi (hereinafter “Nkosi”)
of an attorney’s
firm in Nelspruit. Nkosi’s
preliminary report that served before the Council on 21 November 2008
stated that various
instances of serious misconduct on the part of
the Applicant were found and, if correct, could justify his dismissal
from the Municipality.
Nkosi’s preliminary report further sets
out,
inter alia
,
evidence of past and continuing conduct of the Applicant that
hampers, prevents and undermines the Council’s ability to
perform its obligations in terms of the Systems Act and its mandate
of development and service delivery in respect of the area
under its
jurisdiction. Nkosi’s also informed the Council that the
failure of the Applicant to implement Council resolutions
had a
fundamentally deleterious effect of the workings of the Council.
Nkosi also informed the Council that he was of the opinion
that an
uninhibited investigating of the Applicant’s conduct would not
be possible while the Applicant continued to be present
at the
municipal offices in his capacity as Municipal Manager.
[6]
On 21 November 2008, Council was thus
provided with information and
prima
facie
evidence to the
effect that the Applicant’s conduct and execution of his duties
had caused serious harm to the operations
and the image of the
Respondents and, if the Applicant was allowed to continue in similar
manner, would cause further harm to the
Respondents. In order to put
a stop to the continuing harm, Council decided that it was necessary
to remove the Applicant from
the workplace immediately. Against this
background the Applicant was put on “
special
leave
”
with full pay
on 22 November 2007. This was done in accordance with the Applicant’s
contract of service which provides,
inter
alia
, that –
“
8.4 The Municipality may
grant the Municipal Manager special leave with pay for a reasonable
number of working days… by decision
of Municipal Council:”
The
special leave was to endure until 31 January 2008 by which time
Nkosi’s investigation and special report was expected
to be
complete.
Clause 8.4
is a sub clause of the general clause
which regulates the Applicant’s leave:
Clause
8.1
deals with annual
leave,
clause 8.2
with
sick leave,
and clause 8.3
with family responsibility
leave.
Clause 8.4
deals with special leave.
[7]
In a letter to the Applicant, dated 22
November 2007, the Applicant was not only advised by the Executive
Mayor of the Respondents
that he was placed on “
special
leave
”
, he was also
advised not to report for duty and not to interact with any Council
employees or officials, councilors or any departments
which deal with
the Council. The Applicant responded to this letter in a letter of
even date. In this letter the Executive Mayor
was specifically
advised that the attempt to place the Applicant on special leave was
not in accordance with his contract of service.
The Applicant further
specifically advised Council that:
“
3) If it is the intention of
the Municipality to suspend me, the suspension must be in accordance
with my Contract of Employment
and the South African Local Government
Bargaining Council Collective Agreement as well as applicable
legislation.
”
[8]
The expanded preliminary report of
Nkosi was made available to the Council and served before the
Council’s meeting on 31 January
2008. From this report it
appears that substantial work still had to be carried out in relation
to the investigation into the Applicant’s
conduct and the
report itself. At this meeting it was decided to extend the
Applicant’s special leave until 15 March 2008.
The resolution
further removed the Applicant’s entire authority to act on
behalf of the Municipality.
[9]
On 11 February 2008 (two days before
the urgent application again served before this Court), a further
resolution was placed at
a special meeting of the Council in terms of
which the Applicant was placed on suspension with full pay and with
retention of all
benefits
(see
also paragraph [2] supra).
The
“
suspension
”
was effected in terms of clause 9 of
this contract of service which reads as follows:
9. Precautionary suspension
9.1 The Municipality may suspend
the Municipality Manager on full pay if it is alleged that he has
committed a serious misconduct
and the Municipality in its sole and
absolute discretion believes the presence of the Municipal Manager
may jeopardize any investigations.
9.2 The Municipal Manager shall in
view of clause 9.1 above, be notified in writing of his suspension,
and shall be entitled to
respond to the allegations within 7 (seven)
working days.
9.3 If the Municipality suspends
the Municipal Manager as above then a disciplinary hearing must be
held with in 90 (ninety) days.”
PRESENT
APPLICATION
[10]
The Applicant argued that the
resolutions by Council dated 21 November 2007 and 31 January 2008 in
terms of which the Applicant
was placed on “
special
leave
”
, was unlawful.
It was further argued that by doing so, Council effectively placed
the Applicant on suspension unlawfully purporting
to act in terms of
clause 8.4 of the employment contract and in breach of the clear
provisions of clause 9 of the employment contract
which provides
specifically for preventative suspensions. It further argued on the
strength of a letter dated 1 February 2008 from
the Respondents’
attorneys addressed to the Applicant and the resolution that,
de
facto
, the Applicant has
been placed on suspension contrary to the provisions of
clause
9
of the contract of
service. In the letter dated 1 February 2008, the Applicant was
advised that he was not to visit the premises
of the Municipality
during his period of special leave. Council on behalf of the
Applicant also referred to Court to paragraph
67.5 of the
Respondents’ supplementary answering affidavit where the
following is stated:
“
The Council, for the reasons
already mentioned, chose to characterize its actions as granting the
applicant special leave. A further
motivation for this
characterization is that the Council did not want the applicant’s
name and reputation to be publicly
tainted by his being “suspended”.
If, however, the honorable court finds that the Council’s
action could not
be regarded a special leave in terms of clause 8 of
the applicant’s contract of employment, it still does not
equate to the
applicant’s being instructed not to attend at the
office being unlawful. In the circumstances that pertained to the
applicant
[sic] was quite entitled to suspend the applicant on full
pay pending finalisation of the investigation into his conduct.”
[11]
It was pointed out on behalf of the
Applicant that, in terms of clause 9.1 of the contract of service,
the Municipal Manager may
be suspended on full pay if it is alleged
that he has committed a serious misconduct and the municipality may
do so in its sole
and absolute discretion where it believes that the
presence of the municipal manager may jeopardize any investigation.
In terms
of
clause 9.2
of the suspension clause, the
Municipal Manager shall be notified in writing of his suspension and
he shall be entitled to respond
to the allegations within 7 working
days. In terms of clause 9.3 a disciplinary hearing must be held
within 90 days of the date
of the suspension.
[12]
On behalf of the Applicant it was
argued that, because there was no compliance with any of the
provisions of clause 9, the Council
could not lawfully pass a
resolution purportedly in terms of clause 8.4 of the agreement
because the Municipal manager did not
ask to be placed on special
leave and therefore did not consent to the special leave, nor was he
given an opportunity to make representation
as to why he should be
placed on special leave.
[13]
I am in agreement with the submission
on behalf of the Applicant that,
prima
facie
, it would appear that
the special leave clause was used to
de
facto
suspend the Applicant
pending the outcome of the investigation. The placement on suspension
had all the elements of a
de
facto
precautionary
suspension: Firstly, the Applicant was placed on “
special
leave
”
in order to
remove him from the premises of the Respondents pending the outcome
of the investigation. Secondly, the Applicant was
specifically
instructed by Council (in the letter from its attorneys dated 1
February 2007) not to visit the premises of the Respondents.
Thirdly,
by the time the first resolution was taken on 22 November 2007, Nkosi
had already concluded in his preliminary report
(in terms of which
prima facie
evidence was presented to the Council
that the Applicant’s conduct and execution of his duties had
caused serious harm to
the operations and image of the Respondents)
that if he (the Applicant) was allowed to continue in similar manner,
further harm
would be caused by the Respondent.
[14]
The Council had, in my view, in light
of the preliminary report compiled by Nkosi and presented to the
Council on 22 November 2006,
ample justification and reason to
suspend the Applicant with full pay provided that the procedures were
followed as provided for
in clause 9 of the contract of service.
Instead the Council decided, contrary to the contract of service, to
place the Applicant
on special leave. The conditions of the special
leave as well as the rationale for the special leave had all the
elements of a
precautionary suspension. By doing so, the Respondents
acted, at least on a
prima
facie
basis, contrary to
the provisions of the Applicant’s contract of service. I have
taken note of the argument advanced on behalf
of the Respondents (and
encapsulated in paragraph 67.5 quoted
supra
)
namely that the Respondents did not want to taint the Applicant’s
name by suspending him and that the Respondents, in any
event, had
ample reason to suspend the Applicant pending the finalization of the
investigation into his conduct. I am of the view
that this submission
misses the point: Firstly, the Respondent is a signatory to a
contract which expressly affords it the
right
to suspend the Municipality if
it is alleged that he has committed a serious misconduct. At the time
when the Applicant was
placed on special leave, such evidence was
already available to the Council. The Council therefore had the right
to suspend the
Applicant. Secondly, the Applicant has certain rights
in terms of the precautionary suspension clause and that is firstly
to be
informed in writing of the suspension and secondly to be
afforded an opportunity to respond. It is trite in our law that a
suspension
must be fair. These points were completely ignored by the
Respondent. In the present case the Applicant was
de
facto
suspended but under
the guise of a special leave provision. (See in this regard
Salojee
v McKensie NO and
Others
(2005) 3 BLLR 285
(LC) where the Court
inter
alia
found that placing an
employee on special leave pending transfer for disciplinary reasons
effectively constituted a suspension.)The
resolution was therefore,
in my view unlawful and taken for an unlawful purpose. This
conclusion is reinforced by the subsequent
actions by the Council and
the resolution taken on 11 February 2008: If the special leave which
was intended to serve as a suspension
was not unlawful, there would
have been no need for the Respondents to convene an urgent special
meeting for purposes of suspending
the Applicant in terms of clause 9
of the contract of service – a step which they should have
taken in the first place. I
am in agreement with the submission on
behalf of the Applicant that the resolution of 11 February 2008 is a
tacit acknowledgement
by the Respondents of the Applicant’s
rights to challenge the resolutions in Court. In conclusion:
Employers must act in
terms of their own disciplinary codes in
disciplining employees. Similarly, where a contract of employment
provides for a procedure
in terms of which an employee may be
suspended, the employer should act in terms of that provision.
See
University
of
the North and Others v Ralebipi and Others
(2003)
11
BLLR
1120
(LAC) where the Court held that the suspension of the employees in
question breached their new employment contracts and ordered
that it
be set aside. In
Popcru &
Others v Minister of Correctional Services & Others
[2006]
4 BLLR 385
(E) the Court held that an employer is not entitled to
deviate from the disciplinary code because it is binding. In
SAPU
& Another v Minister of Safety and Security and Another
(2005) 5 BLLR 490
(LC) the Court
likewise held that a suspension was unlawful because it was done in
contravention of applicable codes in respect
of discipline.
Is
the Applicant entitled to costs in respect of this urgent
application?
[15]
The award of costs is a matter which
falls wholly within the discretion of the Court. In coming to a
conclusion, the circumstances
of the particular case should be taken
into consideration including but not limited to the conduct of the
parties which may have
a bearing on the question of costs. In
labour matter there are further considerations that will be taken
into account such
as the fact that there is an ongoing relationship
between the disputing parties and the fact that a cost order may
strain future
labour relations between the parties. The latter will
typically be relevant where one of the disputing parties is a trade
union
who represents members in the employ of the employer (the other
disputing party). Where a party is successful, a disputing party
would generally be entitled to costs. I have already alluded to the
fact that I am of the view that the Applicant would have been
successful had the application to interdict proceeded on the merits.
In light of this fact, the Applicant would have been entitled
to an
appropriate cost order. The merits of the application was, however,
not argued for the reasons set out above. There is, however,
a more
compelling argument why costs should be awarded in favour of the
Applicant: Because the resistance to the claim was effectively
withdrawn when the resolution (on 11 February 2008) was taken to
suspend the Applicant in terms of clause 9 of the contract of
service, the need to seek an interdict fell away. Support of this
proposition is to be found in CB Prest
The
Law and Practice of Interdicts
(1993)
at page 365 and the decisions in
Lensvelt
& Co Ltd v Goodman & Hughes
1917
EDL 286
and
Society for the
Prevention of Cruelty to Animals NO, WO 916 (Bloemfontein) v De Swart
& Others
1969 (1) SA
655
(O).
[16]
On behalf of the Applicant it
was argued that although the resolution of 11 February 2008 in terms
of which the Applicant was suspended
in terms of clause 9 of the
contract of service, effectively rendered the application before this
Court obsolete, that does not
mean that this exonerated the
Respondents from paying the costs of this application. It was further
argued that there is no reason
why the Applicant should not be
awarded costs on attorney and client scale.
[17]
I am in agreement with this
submission: The Applicant had advised the Respondent as far back as
22 November 2007 (which is the date
of his suspension) that the
Council had no legal basis to suspend him in terms of clause 8.3 of
his contract of service and that
the Council had to suspend him in
terms of clause 9 of his contract of service if it so wished. This
the Council eventually only
did on 11 February 2008.
[18]
In the event, I am of the view that a
cost order should in principle be made against the Respondents. In
respect of the scale of
the cost order, I am of the view that the
circumstances of this case warrant a special cost order. The
Respondents had ample opportunity
to correctly suspend the Applicant.
When the special resolution was taken on 11 February 2008, the
Applicant had already incurred
considerable legal costs in bringing
an urgent application to declare the resolutions dated 22 November
2006 and 31 January 2008
unlawful. The matter was, at that time
already before this Court and was about to proceed on the merits on
the 13
th
of
February 2008.
[19]
The following order is made: The
Respondents are ordered to pay the costs of this application jointly
and severally the one paying
the other to be absolved on an attorney
client scale including the costs of two counsel.
______________________________
AC
BASSON, J
Date
of application
: 13
February 2008
Date
of judgment:
25
February 2008
For
the Applicant:
P
Pretorius SC and Adv WR Mokhare
Instructed
by
: Werksmans
For
the Respondent
:
SG
Barrie SC and PA Buirski
Instructed
by:
Cliffe Dekker
Inc