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[2008] ZALCJHB 68
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Dladla v Council of Mbombela Local Municipality and Another (J270/07) [2008] ZALCJHB 68 (3 March 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case
no: J270\07
In
the matter between:
JACOB
THEMBA
DLADLA Applicant
and
COUNCIL
OF MBOMBELA LOCAL
MUNICIPALITY First
Respondent
MBOMBELA
LOCAL
MUNICIPALITY
Second
Respondent
REASONS
MOSHOANA
AJ
Introduction
[1]
On 20 February 2008, I issued an order in the following terms:
1.
The application is dismissed.
2.
The applicant is to pay the costs of the
respondents on a party and party scale, such costs to include costs
of employing two counsels.
Hereunder
follows the reasons for such an order.
Background
facts
[2]
The applicant is employed by the second respondent as municipal
manager in terms of a written contract of employment fixed for
five
years. On 11 February 2008, the first respondent passed a resolution
suspending applicant as municipal manager. According
to the applicant
such suspension is not consistent with the provisions of clause 9 of
his contract of employment
[1]
.
The respondents disputes that.
[3]
In view of that suspension, the applicant approached this court on 15
February 2008, to be heard on 20 February 2008. There
is a dispute
about when exactly was this application brought. I shall not
determine this dispute. Suffice to mention that on 14
February 2008,
this court issued an order to the following effect:
1.
The matter is enrolled.
2.
The matter is struck off the roll.
3.
The applicant is ordered to pay the costs of this application on an
attorney client scale including the
costs of two
counsels.
[4]
The applicant’s view is that on that day no application was
brought. This dispute may be resolved by this court some other
day.
In the application I heard, the applicant sought the following:
1.
That the rules of service and process provided for in the rules of
this court be dispensed with in order
that this matter be heard as
one of urgency in terms of rule 8.
2.
The respondents are called upon to show cause on a date to be
determined by the Registrar, why a final
order should not be made.
2.1.
Declaring that the suspension of the
applicant by first respondent is unlawful.
2.2.
Reviewing and setting aside the resolution
adopted by the first respondent on 11 February 2008 and purporting to
suspend the applicant.
2.3.
Directing that with immediate effect, the
respondents shall uplift the applicant’s suspension and permit
him to resume duties
as municipal manager of the second respondent.
2.4.
Ordering the respondents to disclose and
furnish a copy to the applicant attorneys of the interim
investigation report prepared
by Ngobe-Nkosi Attorneys and furnished
to the respondent.
2.5.
Costs of suit on attorney and own client.
3.
Directing that paragraphs 2.1 to 2.4 above
shall operate as interim orders pending the return date to be
determined by this Honourable
court.
4.
Granting
further and or alternative relief
[2]
.
[5]
In argument, Kennedy SC for the applicant moved for amendment of
prayer 3 to refer only to paragraph 2.3. In support of his
application, the applicant testified under oath that there is nothing
in the resolution of 11 February 2008 that states that he
has
committed a serious misconduct. Also there is nothing to indicate or
allege that his presence at work may jeopardise any investigation.
[6]
Further, he testified that he is entitled to be afforded an
opportunity to make representations to council as to why a decision
suspending him should not be taken. In his view fairness required
that he be heard before any decision to suspend him is taken
and that
was not done.
[7]
Alleging that the matter is urgent, he testified that his name and
reputation is being tarnished in the community and public
at large,
including public media. Further, he testified that the suspension
therefore has adverse effects on him and is continuing.
He made
reference to certain already published articles (B1 to B9).
[8]
He testified that if the order is not issued, he will continue to
suffer harm detrimental to his dignity and reputation. The
respondents disputed all that. In its supplementary affidavit, the
first respondent, through its speaker had set out various allegations
against the applicant which were being investigated by Nkosi-Ngobe
attorneys. On 24 October 2007, the first respondent resolved
to
appoint an independent service provider to investigate the conduct of
the applicant. In that resolution various allegations
of what appears
to be serious misconduct were set out.
[9]
On 21 November 2007, Ngobe’s preliminary report was furnished
to the first respondent. That preliminary report according
to the
first respondent highlighted a series of allegations of serious
misconduct. As a result of that, the first respondent purporting
to
act in accordance with clause 8.4 of the employment contract, placed
the applicant on special leave. Although the applicant
defied this,
the issue became a subject of litigation which is apparently still
pending in this court.
[10]
At the time of argument of this application, the MEC: Local
Government and Housing had already issued a notice in terms of
section 139 of the Constitution to place the second respondent under
an administrator. At the time of preparing this judgment,
the second
respondent was placed under such administrator.
[11]
Further allegations also surfaced that the applicant deleted certain
information on his laptop and that he failed to co-operate
with the
investigator who had already expressed discomfort about the presence
of the applicant and his non-cooperation to his attorneys
on 28
January 2008.
[12]
It was in this letter of 28 January 2008, that the investigator
refuted allegations that the applicant did not know anything
about
investigations into his conduct.
[13]
On 12 February 2008, after his suspension, the applicant was informed
of his suspension. On the same day, the full resolution
of 11
February 2008, together with the draft resolution was faxed to the
applicant’s attorneys of record.
[14]
On 14 February 2008, the applicant was served with an affidavit of
Msomi Jimmy Mohlala which sets out the allegations already
referred
to earlier in this judgment (resolution of 24 October 2007). In his
replying affidavit, the applicant baldly denied allegations
of
tampering with laptop and failure to co-operate with the
investigator.
Argument
[15]
In court Kenny SC appearing with Mokhare pegged his submissions on
two arguments. The first one related to proper interpretation
of
clause 9 of the contract, which I shall later term breach of contract
argument. The second one which was persued with vigour
relates to a
right to be heard before suspension, which for the purpose of this
judgment, I shall call the fairness argument. On
the other hand,
Barrie SC appearing with Buirski argued that there was no breach of
contract and or unfairness.
Analysis
The
breach of contract argument
[16]
In the applicant’s short heads it was contended that, when
endorsing the resolution suspending the applicant, no allegations
had
been communicated to the applicant that he has committed a serious
misconduct. Furthermore, no allegation has been communicated
to the
applicant that his presence at work may jeopardise any investigation.
[17]
It is apparent that this submission is premised on the assumption
that clause 9.1 properly interpreted places a duty
on the first
respondent to communicate the allegations and the fact that his
presence may jeopardise any investigation.
[18]
Clause 9.1 gives the second respondent, obviously through the first
respondent a discretion to suspend. However, that
discretion has to
be triggered in my view by the presence of allegations that he has
committed a serious misconduct. Clause 9.1
does not suggest that the
said allegations ought to be communicated to the municipal manager
before suspension.
[19]
The wording is clear. Once an allegation exist that a serious
misconduct has been committed that is sufficient to trigger
the
coming into operation of clause 9.1 in particular. The believe that
the municipal manager may jeopardise investigation is in
the absolute
discretion of the municipality. Therefore the test is subjective.
Such believe need not be communicated to the applicant
before
suspension.
[20]
At the time when Nkosi tabled his preliminary report various
instances of serious misconduct on the part of the applicant
were
brought to light. Therefore since then (21 November 2007) the second
respondent acquired what one would call a right to suspend
which at
its discretion may be effected.
[21]
Since the believe in my view is subjective, it only takes the
municipality to form that believe. It matters not that
the applicant
would say that as a matter of fact he is not interfering with the
investigation. That may be so factually, but the
issue is the believe
of the second respondent. I take this view, even if I were to accept
the applicant’s version that he
is not interfering with the
investigation.
[22]
Therefore in my view clause 9.1 has not been breached. In so far as
clause 9.2, Kennedy argued that such would be superfluous
as the
applicant knows of no allegations. Clause 9.2 in my view has nothing
to do with the lawfulness or otherwise of the suspension.
All it
does, it guarantees the applicant a right to be heard after the
suspension, which may make the second respondent perhaps
to change
its believe and uplift the suspension in terms of clause 9.1.
[23]
On 12 February 2008, the applicant was notified of his suspension in
writing. Therefore the first part of clause 9.2
has been complied
with. I am convinced that the applicant has knowledge of what is
alleged against him. He should have been aware
of the resolution
taken on 24 October 2007. He is now aware of the allegations set out
in the affidavit of Mohlala. Therefore,
if he need to put up any
response, he knows what to respond to.
[24]
In terms of the resolution of 11 February 2008, all the applicant is
afforded is an opportunity to make representation
whether his
suspension should continue until the finalisation of the
investigation by Ngobe
[3]
.
[25]
Accordingly clause 9.2 has not been breached at all. Nothing much
turns on clause 9.3 because it may still happen. On
those basis, I
conclude that the breach of contract of argument must fail.
The
fairness argument
[26]
This is the argument as mentioned before, Mr Kennedy SC persued
passionately with vigour. In his submission, the applicant
had a
right emanating from common law to be heard before the suspension. As
it was common cause, that the applicant was not given
any form of
hearing before the suspension, then suspension is unlawful so the
argument went. He cited various authorities to support
the
proposition that a suspension without a hearing is unlawful.
See:
Muller v Chairman of the Ministers Council House of Representatives &
Others 1991 (12) ILJ 761 (C)
,
Ngwenya
v Premier Kwa-Zulu Natal
2001 (8) BLLR 924
(LC)
,
Venter
v SATB
1999 (10) BLLR 1111
(LC)
,
Marcus
v Minister of Correctional Services
2005 (2) BLLR 215
(SE)
,
SAPU
v National Commissioner of Police
2006 (1) BLLR 42
(LC)
,
Saloojee
v Mackenzie NO
2005 (3) BLLR 285
(LC)
Bula
v Minister of Education
1992 (4) SA 716
(TKA)
,
Mbuyeka
v MEC welafare Eastern Cape 2001 (1) ALL SALR 567 (TK)
,
Mahlauli
v Minister of Home Affairs
1992 (3) SA 635
(SE)
,
SAPU
v SAPS
2005 (5) BLLR 490
(LC)
.
[27]
In
Muller’s
decision
the court was dealing with exercise of public power. There the court
found that the Public Service Act of 1984 did not
empower suspension
in the absence of a hearing. Of course the question that comes to
mind is when the first respondent suspended
the applicant was it
exercising public power or powers emanating from the contract of
employment (clause 9.1). In my view, the
first respondent was
exercising contractual power.
[28]
In
Ngwenya v Premier Kwa-Zulu Natal
, the court had to consider
the provisions of clause 7.2 (c) of the PSCBC Resolution 2 of 1999
which provided that once an employee
is suspended, the employer must
hold a disciplinary hearing within a month. Most importantly, the
court at paragraph 35 said the
following after having considered the
quotation from
Muller’s
decision:
“
In
my view, the applicant needed to be heard before the second
suspension was imposed,
in the
light of the agreement that had been concluded
”.
[29]
The court also distinguished the case before it with the one of
Mabilo v Mpumalanga Provincial
Government and Others
(1999) 8 BLLR 821
(LC)
on
the basis that
Mabilo
was
given a letter and he was asked to state why he should not be
suspended.
[30]
In the
Mabilo
judgment,
the court accepted that there is a need for flexibility when
considering the one facet of the rules of natural justice,
being,
audi alteram partem
.
Therefore in my view,
Ngwenya
is
not authority to the proposition that in all suspension cases, a
hearing has to take place.
[31]
In
Venter v SATB
(1999) 10 BLLR 1111
(LC)
this court per
Revelas J said the following before refusing a similar application:
“
The
respondent, in my view, correctly contended that the respondent’s
failure to give applicant a hearing or opportunity to
make
representation before he was suspended was, in the circumstances, not
unfair, at all. The suspension was not meant to be punishment
either.
In this regard see
Lewis v Heffer
and Others
(1997) 3 ALL ER 354
(CA)
at
364C—E
where Lord Denning held that it was not unfair to refuse a hearing
before suspension”
.
[32]
In the
Marcus
matter,
the court found that paragraph 5.2 of the suspension policy made
specific reference to the
audi alteram
partem
rule and such paragraph was not
complied with. In the
Bula
matter,
the suspension was in terms of section 26 of Education Act 26 of
1983. It was without pay as contemplated by subsection
6 of the said
section
[33]
The
Mahlauli
decision
dealt with the suspension in terms of section 20 (2) of the Public
Service Act of 84 and which was without pay. In
SAPU
& Others v Minister of safety and Security
2005 (5) BLLR 490
(LC)
, this court found the suspension
to be unlawful in that it contravened the applicable collective
agreement. Therefore all of the
above authorities do not support the
proposition contended by Kennedy SC.
[34]
Ngcobo J in the matter of
Chirwa v Transnet case CCT 78\06
(2007)
ZACC 23
said the following:
“
The
subject matter of the power involved here is the termination of a
contract of employment for poor work performance. The source
of the
power is the employment contract between the applicant and Transnet.
The nature of the power involved here is therefore
contractual. The
fact that Transnet is a creature of statute does not detract from the
fact that in terminating the applicant’s
contract of
employment, it was exercising contractual power. It does not involve
the implementation of legislation which constitutes
administrative
action”
.
[35]
I refer to this judgment simply to illustrate that when the first
respondent decided to suspend the applicant it was
exercising
contractual power as opposed to public power. The line of authorities
relied on by Kennedy SC mainly had to do with
exercise of public
power (power emanating from the statute).
[36]
Clause 9.1 being the source of the power, does not provide for a
hearing before suspension. However, the court might
imply such.
See:
Boxer Superstores Mthatha & Others v Mbeya
(2007) 8 BLLR 693
(SCA)
,
Old
Mutual Life Assurance Co LTD v Gumbi
2007 (8) BLLR 699
(SCA)
.
[37]
These decisions were about pre-dismissal hearing. I do not see how
and why the same principle should not apply to pre-suspension.
If the
court considered that alone, I should have concluded that in the
absence of a hearing then the suspension is unfair and
unlawful and
ought to be set aside. Approaching matters of suspension with pay for
that matter in that manner would in my view
be a serious miscarriage
of justice. Of course there is merit in a submission that in
suspension cases, there may be a need to
show a right to work.
However, a right that has to be protected in matters of this nature
is a right to be heard (
audi alteram
partem
).
[38]
In the resolution of 11 February 2008, the applicant was afforded a
right to be heard. This was after the decision though.
Of importance
is the fact that the purpose of the representation to be made on 21
February 2008, is to consider whether suspension
should continue.
This clearly evinces open mind to be persuaded otherwise.
[39]
In our law,
audi alteram partem
can still be observed after
the prejudicial decision. In
Mamabolo v Rustenburg Regional Local
Council
[2000] ZASCA 133
;
2001 (1) SA 135
(SCA)
the court said the following:
“
In
certain instances a court may accept as sufficient compliance with
the rules of natural justice a hearing held after the decision
has
been taken, where
:
-there
is sufficient interval between the taking of the decision and its
implementation to allow fair hearing.
-
the
decision maker retains a sufficiently open mind to allow himself to
be persuaded that he should change his decision
and
-the
affected individual has not thereby suffered prejudice”
.
[40]
In conclusion the court in
Mamabolo
found that the termination
was valid. This decision was followed by the LAC in its judgment of
Semenya & Others v CCMA & Others 2006 27 ILJ 1627 (LAC)
See
also: SAA v Bogopa & Others (2007) 28 ILJ 2718 (LAC)
.
[41]
Where a suspension is with pay I do not see how an employee who does
not demonstrate a right to work is prejudiced by
a suspension.
See:
Faberlan v Mckey and Fragen
1920 WLD 23
,
Consolidated
Woolwashing LTD v Press of Industrial Court 1986 (3) 786 (AD)
,
SAJID
v The Juma Musjid Trust (1999) 20 ILJ 1975 (CCMA)
,
Compare-Singh
v SA Rail Commuters t\a Metrorail
(2007) JOL 19782
(LC)
.
[42]
In
Phutiyagae v Tswaing Local Municipality (2006) 27 ILJ 1921 (LC)
Mokgoatheng AJ said the following:
“
In
my view the applicant’s right to be heard before suspension
cannot by any stretch of logic be construed as a glaringly
grave
injustice, or a serious miscarriage of justice justifying a
conclusion that the failure by this court to intervene will result
in
the applicant suffering irreparable harm”
.
[43]
In my view, the applicant’s image and reputation cannot be the
basis upon which this court can overturn the suspension.
If the
applicant convinces the respondents in the representation, the
respondents may uplift the suspension.
See:
Zwakala v Port St Johan’s Municipality & Others (2000) 21
ILJ 1881 (LC)
[44]
Accordingly, the fact that the decision was taken without a hearing
does not render the suspension unlawful. Therefore
the fairness
argument ought to fail.
Issue
of costs
[45]
Both counsels were in agreement that costs should follow results.
However, Barrie argued that such costs should be at
a punitive scale.
Although in my view, the matter was not even urgent, the applicant
had some arguable case on his right to be
heard. Unfortunately the
court is not in agreement that failure of such right renders the
suspension unlawful. In that regard it
was appropriate to award costs
on party and party scale. The order is therefore confirmed.
________________
Moshoana
AJ
Acting
Judge of the Labour Court
Johannesburg
Appearances
For
the Applicant :
Kennedy SC
Instructed
by
: Werksmans Attorneys
For
the Respondent : Barrie SC
Instructed
by
: Cliffe Dekker Inc
Date
of hearing
: 20 february 2008
Date
of Reasons : 03 March
2008
[1]
Clause 9
9.1
The municipality may suspend the municipal
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 a municipal manager may jeopardise any
investigation.
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 seven working days.
9.3
If the municipality suspends the municipal
manager as above, then a disciplinary hearing must be held within
ninety days.
[2]
Notice of
motion filed on 15 February 2008.
[3]
Clause (c)
Mr JT Dladla be given an opportunity until Thursday 21 February
2008, to deliver written representation to the speaker
of
council…regarding his suspension whether it should continue
until Mr S Ngobe’s investigation has been finalised…
Clause
(d) Mr JT Dladla’s representation in terms of (c) above if
any, be placed before council at its meeting on 26 February
2008 to
enable council to consider and decide whether Mr Dladla’s
suspension should continue.