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[2009] ZALCJHB 75
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Ramphele v Ngaka Modiri District Municipality (J49/09) [2009] ZALCJHB 75 (21 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
NOT
REPORTABLE
CASE
NO: J49/09
2009-01-21
In
the matter between
TDH
RAMPHELE
Applicant
And
NGAKA
MODIRI DISTRICT
MUNICIPALITY
Respondent
J
U D G M E N T
VAN
NIEKERK J
[1]
The applicant is the manager of the respondent, to which I shall
refer as the municipality. He brings this application as a
matter of
urgency to set aside his suspension and the institution of
disciplinary proceedings against him. The applicant disavows
any
reliance on the Labour Relations Act; he founds this application on
his contract of employment, alternatively the right to
fair
administrative action guaranteed by Section 33 of the Constitution.
[2]
The applicant was employed as a municipal manager by the respondent
with effect from 1June 2007. His contact of employment is
expressly
made subject to the Municipal Finance Management Act, 2003.
[3]
I refer in this regard to clause 1 of the applicant's contract of
employment. Also relevant to these proceedings is clause 14
of the
applicant's contract, paragraphs 1 and 2 which reads as follows:
"14.1
The employer may suspend the employee on full pay if he is alleged to
have committed a serious offence and
the employer believes his
presence at the workplace might jeopardise any investigation into the
alleged misconduct or endanger
the well-being or safety of any
municipal property, provided that before an employee is suspended as
a precautionary measure, he
must be given an opportunity to make
representations of why he should not be suspended.
14.2
The employee who is to be suspended must be notified in writing of
the reasons for his suspension, simultaneously
or at least within 24
hours after the suspension. He shall respond within 7 working days".
[4]
The applicant and the executive major have been involved in
disagreements regarding the expenditure of municipal funds. The
applicant has set out in detail his allegations of mismanagement and
the steps he has taken to address his concerns as well as
the
response of he executive major. Regrettably, the respondent has
chosen to respond to most of the applicant's averments with
a broad
denial and suggestions that they are scandalous and vexatious. This
has not assisted the court in its task, especially
in relation to the
resolution of factual issues.
[5]
Be that as it may, what is not disputed is that on 17 December 2008
the council adopted a resolution, which reads as follows:
"Resolve
that:
1.
The municipal manager be put on
precautionary suspension with effect from 17 December 2008 pending
the representations to the council
by 30 December 2008 on why his
precautionary suspension may be stayed pending the outcome of the
disciplinary hearing against him
and such steps as may be
necessitated by the outcome of the disciplinary hearing.
2.
Council appoints Mrs P Semenya in the employ of the municipality to
act as the
municipal manager pending the outcome of the disciplinary
hearing to execute the duties, functions, rights and obligations of
the
council with remuneration and benefits attached to the office of
municipal manager.
3.
The acting municipal manager be delegated powers to deal with all the
administrative
issues, to do all necessary to oversee the expeditious
disciplinary hearing against the municipal manager, including but not
limited
to appoint the prosecutor and the chairperson or any other
person or services that may be necessary for the purposes of a
disciplinary
hearing.
4.
The disciplinary proceedings be effected immediately and be finalised
within
a reasonable time.”
[6]
On 17 December 2008, the executive major wrote a letter to the
applicant. The letter reads as follows:
“
Dear
Mr Ramphele,
The
letter of precautionary suspension and presentation:
1.
In terms of the council resolution
number 84/2008 dated 17 December 2008, you are hereby given
precautionary suspension with immediate
effect with full
remuneration. The council believes that your continued presence in
the municipal premises and in the office of
municipal manager may
have adverse effects on the ability of witnesses who are required to
testify against yourself. Further the
council is of the opinion that
you may not be able to properly execute the duties of the municipal
manager, while at the same time,
preparing for your defence.”
[7]
Paragraph 5 of the letter requires the applicant to:
“
Immediately
deliver the access card or keys of the municipal offices in your
possession or control to the office of the executive
major including
documentation, equipment in your possession.”
The
letter is signed by one councillor Themba Ngkwabeni, the executive
major.
[8]
The applicant was on leave from 13 December 2008 until 31 December
2008 and it was only on his return from holiday that he became
aware
of the letter of suspension. On 7 January 2009, the executive major
again wrote to the applicant, this time issuing a notice
instructing
the applicant to attend a disciplinary hearing on 12 January to
answer to 16 charges of misconduct. The hearing was
postponed to 19
January and then again stood down until noon of 20 January.
[9]
I do not intend dealing with Mr Bruinders’s submissions
regarding the applicant’s administrative law rights. In
the
case of
Chirwa v Transnet Limited & Others,
[2007] ZACC 23
;
2008 (3) BCLR 251
(CC)
, the majority of the Constitutional Court held that a public
sector employee who claimed that she had been unfairly dismissed was
not entitled to rely on Section 33 of the Constitution to claim
relief against her employer and that she was obliged to utilise
the
dispute resolution procedures open to her under the Labour Relations
Act. There is therefore no merit in his line of argument
in this
regard.
[10]
Insofar as the applicant’s claim is based on his contract of
employment, Mr Makaba, who appeared for the respondent,
submitted
that the
Chirwa
judgment precluded the applicant from seeking
relief in this court in relation to his suspension and the pending
disciplinary proceedings,
other than in terms of the Labour Relations
Act. I do not agree with that submission. In
Magotle v The Premier
of the North West Province & Others
, (J2622/09,
5 January
2009)
I had occasion to say the following:
“
Although
the judgment of the Constitutional Court in Chirwa is an obvious and
clear endorsement of the virtues of the mechanisms,
institutions and
remedies crafted by the LRA and the merits of what Skweyiya J,
(referring to the explanatory memorandum accompanying
the LRA) termed
a one stop shop for all labour related disputes established by that
statute. I do not understand the judgment expressly
to exclude the
right of an employee to pursue a contractual claim, either in this
court by virtue of the provisions of section
77(3) of the Basic
Conditions of Employment Act or in a civil court with jurisdiction.
Nowhere in the judgment is it unequivocally
stated that the effect of
the legislative reforms effected after 1994 and in particular the
creation of specific statutory remedies
to address unfairness and in
common practices, is to deprive an employee of any common law
contractual rights or the right to enforce
them in a civil court or
in this court in terms if Section 77 of the BCEA. If the
Constitutional Court in Chirwa had intended to
make a ruling to this
effect, overriding as it would have done, a consistent line of
judgments by the Supreme Court of Appeal,
it would have done so in
expressed terms.” (See:
Paragraph
28 of the judgment.)
[11]
Nor do I consider that Mr Makaba’s jurisdictional challenge
based on clause 20 of the applicant’s contract of employment
has any merit. That clause provides the following:
“
Jurisdiction:
The parties consent firstly to the jurisdiction of the
Commission
for Conciliation Mediation and Arbitration (CCMA) and
if the CCMA is not able to adjudicate the dispute,
the courts of the
Republic of South Africa with regard to any claim resulting or
arising from this contract.”
[12]
This clause, properly understood, does not oblige the applicant to
resort only to the remedies available under the Labour Relations
Act,
nor does it oblige him only to refer any dispute with his employer to
the CCMA. The CCMA has no jurisdiction in respect of
contractual
claims nor claims based directly on constitutional rights. There is
nothing, in my view, in the applicant’s contract
that precludes
him from seeking the relief he does in this court, based, as it is,
on their contract and the contractual remedies
that flow from it.
[13]
I turn first to the applicant’s suspension. Clause 14 of the
applicant’s employment contract, properly constructed,
requires
the respondent to have a justifiable reason to believe that the
applicant is engaged in serious misconduct. Secondly,
there must be
some objectively justifiable reason to deny the applicant access to
the workplace, based either on any jeopardy to
an investigation that
his continued presence might pose, or any threat to any person or
property. Thirdly, the applicant must be
given an opportunity to make
representations as to why he should not be suspended before a
decision to that effect is taken.
[14]
Clause 14.2 sits unhappily with this provision, since it refers to a
right to make representations regarding the reasons for
suspension
within 7 days of that suspension having been effected. I agree with
Mr Bruinders, who appeared for the applicant, that
what clause 14.
envisages is a two-tier approach to a suspension, i.e. a right to be
heard before any decision to suspend is made,
and a right to
challenge the reasons for any decision to suspend within 7 days of
that decision.
[15]
In any event, in my view, the contractual obligation of fair dealing
between employer and employee requires that an employee
be afforded a
hearing prior to any decision by an employer to suspend him or her.
In that regard I refer to the decision in
Magotle
and
particularly the reference to the decision of the Cape Provincial
Division in the case of
Muller v Chairman, Minister’s
council House of Representatives, 1991 (12) ILJ 761 (C)
. In that
case, the court dealt with the application of the
audi alteram
partem
rule to a suspension in a statutory context. The court’s
observations of the unfairness necessarily visited on a suspended
employee are relevant in the present context and relevant further to
the nature and extent of the contractual obligation of a fair
dealing
to which I have referred.
[16]
In the present instance, the council resolved to suspend the
applicant without any notice to him and without a hearing. In
doing
so, in my view, it acted in breach of clause 14 of the applicant’s
contract and the obligation of fair dealing by which
the respondent
is bound. Second, insofar as the pending disciplinary proceedings are
concerned, this court has previously dealt
with the potential
conflict that might arise between a municipal manager and an
executive major. In the case of
Mbato v Elanzeni District
Municipality & Others,
2008 (5) BLLR 417
(LC)
, my colleague
Cele AJ, as he then was, said the following: (I quote from paragraph
22 of the judgment)
“
It
is inevitable that in the execution of their statutory duties, a
conflict might arise between the municipal manager and the executive
major. It would not be desirable in the administration of justice
that the municipal manager must live with a constant fear that
in the
event of such conflict the municipal manager is at the mercy of a
major with disciplinary powers. Justice would be better
served in my
view, if both officials involved in a conflict situation, make
representations to the council which in turn can, after
a
deliberation on the matter , decide on any disciplinary actions that
ought to be taken and if so, against whom. The composition
of the
council will not detract from the ability of the council to
deliberate on whether or not disciplinary measures need to be
resorted to. My considered opinion is that the power to discipline
the municipal manager must reside in the council. I conclude
therefore that this power to discipline a municipal manager is vested
in the council and is not capable of being delegated to an
executive
major.”
[17]
This brings me to the resolution adopted by the council on 17
December 2008. The resolution refers in vague terms to “the
disciplinary hearing” against the applicant, referring, it
would seem, to a decision already taken by an unknown party to
the
effect that the applicant should be disciplined. The resolution does
not unequivocally reflect a decision by the council to
institute
disciplinary proceedings against the applicant, nor does it reflect
the grounds on which the applicant is to be disciplined.
In short,
only the council is entitled to discipline the applicant. There is no
resolution before me that authorises disciplinary
action against the
applicant on the grounds reflected in the charges brought against
him. In other words, there is no resolution
that any person properly
delegated by the council can implement.
[18]
I wish to emphasise that I am in no way calling into question the
validity of the resolution adopted by the council on 17 December
2008. The applicant does not challenge the validity of the resolution
per se
nor does he dispute the authority of the council to
discipline him. The point he makes quite simply is that in terms of
his contract
of employment, being subject expressly, as it is, to the
relevant legislation, the council must resolve to discipline him on
grounds
that are specified. In this case, that did not happen and the
purported notice to attend a disciplinary enquiry issued by the
executive
major, in my view, constituted a breach of the applicant’s
contract.
[19]
For these reasons, I am satisfied that the applicant is entitled to
the relief he seeks, at least in the form of the setting
aside of his
suspension and the notice to attend a disciplinary hearing.
[20]
In coming to this conclusion, I wish to emphasise that I make no
judgment on the merits of the charges of misconduct levelled
against
the applicant. They are serious and will no doubt be dealt with in
due course in an appropriate forum and in conformity
with the
respondent’s obligations under the contract of employment that
it concluded with the applicant.
[21]
Finally, I wish to make a number of additional points of a more
technical nature directed at certain issues raised by the respondent.
First, there is the question of joinder, the respondent submits that
the applicant’s failure to join the council is fatal
to this
application.
[22]
In
Gordon v Department of Health,
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA),
the
Supreme Court of Appeal reversed the decision by the Labour Appeal
Court on the question of joinder and in doing so reaffirmed
the test
that is to be applied, i.e. whether a party that is alleged to be a
necessary party, has a legal interest in the subject
matter which may
be affected prejudicially by the judgment of the court in the
proceedings concerned.
[23]
Here, as I have already noted, the applicant does not seek to set
aside the council’s resolution adopted on 17 December
2008. The
relief sought affects only the applicant’s relationship with
the respondent, his employer and as I have already
noted, it is not
the lawfulness of the council’s resolution that is at issue in
these proceedings, rather than the conduct
of the respondent and in
particular the actions of the executive major.
[24]
Finally, in relation to the question of urgency, I am satisfied that
the application is urgent. The applicant became aware
of his
suspension on 31 December 2008 on his return from leave and became
aware of the pending disciplinary hearing on 8 January
2009. His
attorney attempted to obtain a copy of the resolution that is at the
heart of these proceedings, a letter written on
6 January 2009
requesting a copy of the resolution went unanswered and the applicant
was obliged to obtain a copy by other means.
He obtained a copy of
the resolution on 12 January 2009, consulted his legal
representatives on 13 January 2009 and signed the
founding affidavit
on 15 January 2009. I am satisfied that in these circumstances, the
applicant has not been dilatory in exercising
his rights. Setting
down the application for hearing on the normal motion court roll
would defeat the object of the application
and effectively, in my
view, deny the applicant the rights that he has elected to exercise
under his employment contract.
[25]
In relation to the remedy, the applicant seeks to have his suspension
and the institution of the disciplinary hearing set aside.
This
nature of a contractual remedy is available to an applicant in these
circumstances. When circumstances such as these have
not been the
subject of much judicial consideration, either in the case of
Boxer
Super Stores, Mthatha v Benja, 2007 (28) ILJ 2209 (SCA),
the
Supreme Court of Appeal affirming the contractual right to fair
dealing as between employer and employee, further contemplated
the
remedies that may be available in circumstances where an applicant
elected to rely on the fairness of the employer’s
conduct
rather than the unlawfulness of that conduct.
[26]
In that case, the court specifically alluded to the prospect of a
competent remedy in the form of a setting aside in that case
of a
disciplinary hearing and in this regard, I refer to paragraph 10 of
the judgment.
[27]
In my view, the setting aside of both the suspension and the
institution of the disciplinary proceedings is an appropriate
remedy
in the present instance.
I
accordingly make the following order:
1.
The applicant’s suspension is set aside;
2.
The institution of disciplinary
action against
the applicant in terms of the letter by the major of
the respondent dated 7 January 2009 is set aside;
3.
The respondent is to pay the costs of this
application including the
costs of two counsel.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of Hearing: 21 January 2009
Date
of Judgment: 21 January 2009
Appearances:
For
the applicant Adv T Bruinders SC; Adv N R Budlender
Instructed
by Noko Incorporated
For
the First Respondent Adv W R Mokhare
Instructed
by Motaung Incorporated