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[2009] ZALCJHB 95
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Lekabe v Minister Department of Justice And Constitutional Development (J1092/08) [2009] ZALCJHB 95 (5 February 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J1092/08
In
the matter between:
GOSISEPHUTHABATHO
GUSTUV LEKABE
APPLICANT
and
THE
MINISTER DEPARTMENT OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application in terms of which
the Applicant prays for an order on the following terms:
“
1.
…
2.
Declaring that the period of suspension of the Applicant from his
duties by the Respondent expired on or about
the 24 May 2008.
3.
Declaring that the provisions of clause 2.7(2)(c) of the Senior
Management Service Handbook relating to the
holding of a disciplinary
hearing before the expiry of 60 days from the date of the Applicant's
suspension were peremptory.
4.
Declaring that the right of the Respondent to hold a disciplinary
hearing in terms of clause 2.7(2) of the
SMS Handbook terminated with
the expiry of the 60 days mentioned in paragraph 3 above.
5.
Interdicting the Respondent from proceeding with the disciplinary
action against the Applicant on the basis
of the charges which are
hereto attached and marked "A".
6.
Declaring that the suspension of the Applicant from his employment as
the State Attorney for Johannesburg was
no longer valid.
7.
Ordering the Respondent to permit the Applicant to resume his duties
as the State Attorney for Johannesburg
within 5 days from the date of
this order.”
[2]
In essence the Applicant’s case is
that his suspension terminated when the period laid down in clause
2.7(2) of Chapter 7
of the Senior Management Service Handbook ("the
SMS Handbook") expired. He further contends that the
Respondent's prerogative
to subject him to a disciplinary hearing
also terminated with the expiry of the aforesaid period, and that he
was entitled to resume
his duties as the State Attorney in light of
the expiring of the suspension period.
Background
facts
[3]
The Applicant received the letter
suspending him from his duties from Mr Menzi Simelane, the
Director-General for the Department
of Justice and Constitutional
Development on 25
th
March 2008. The reason for the suspension was:
“
Serious
allegations of, inter alia, corruption and sexual harassment have
been made against yourself. The allegations, amongst other,
relate to
soliciting and / or accepting bribes or other improper inducement
from service providers. It has also come to the Department's
attention that you have been found guilty by the Law Society of the
Northern Provinces for serious professional misconduct and
a decision
has been made to request you to show cause why your name should not
be struck off the roll of practicing attorneys.
In view of the
seriousness of the allegations against you, and the fact that your
presence within the office may jeopardize any
investigation into the
allegations, the Department has decided to suspend you in terms of
clause 2.7 (2)(a) of Chapter 7 of the
Senior Management Services
Handbook.
You are hereby given the
opportunity in terms of the rules of Administrative Justice to
comment on the abovementioned. Your written
representations or a
written indication that you do not wish to submit any, must please be
handed to Adv L Vilakazi, Chief Litigation
Officer within 48 hours of
receipt hereof, where after your suspension will be reconsidered.
Should you fail to reply within the
stipulated period it will be
deemed that you do not wish to submit representations.”
[4]
After some communication through
correspondence between the parties’ attorneys, the Applicant
was served with a letter on
the 12
th
June 2008, notifying him to attend a disciplinary hearing on the 20
th
June 2008. The Applicant contends that in terms of clause 2.7 (2) of
Chapter 7 of the Code he should have been charged with misconduct
within 60 (sixty) days of his suspension, failure to do so amounted
to a waiver of the right to discipline him by the Respondent.
[5]
Thus the issue for determination in this
matter concerns the interpretation of clause 2.7 (2) of the SMS
Handbook and specifically
whether:
·
the provisions of clause 2.7 (2) are
peremptory.
·
the suspension has become unlawful as a
result of the expiring of the 60 (sixty) days.
·
an employer has the right to continue with
the disciplinary hearing after the 60 (sixty) days has lapsed.
[6]
For the purposes of this judgment I do not
deem it necessary to go into details of the charges proffered against
the Applicant.
[7]
In his submission that the Respondent was
no longer entitled to proceed with the disciplinary hearing because
of the lapse of 60
(sixty) days since his suspension, the Applicant
relied on the decisions,
Minister of
Labour v General Public Service Sectoral Bargaining Council &
Others [2006] 27 ILJ 2650 (LC) par 12 & 13
and
Lovejoy Mlambo & Another v Head of
Department: North West Department of Agriculture, Conservation and
Environment & Another
unreported case number CA1202/06.
[8]
In the
Lovejoy
Malambo
the Buphutatswana Provincial
Division in an urgent application concerning the suspension of the
employees over a period of 368
(three hundred and sixty eight) days,
held per Landman J that:
“
[22]
The applicants have not waived their right to rely on clause 2.7
(2)(c) of the Handbook. They accordingly have the right not
to be
subjected to a disciplinary hearing…”
The
Court went further and prohibited the employer from taking
disciplinary action against the two employees. The suspension which
had exceeded the 60 (sixty) days in terms of clause 2.7 was declared
invalid.
[9]
The case of the
Minister
of Labour
(supra)
is distinguishable from the present case in that in that case the
Court was dealing with the unfair labour practice. The
unfair
labour practice issue which the arbitrator had to deal with before
the matter came before this Court on review concerned
the provisions
of clause 7.2(c) of Resolution 1 of 2003 of the Public Service
Coordinating Bargaining Council (the PSCBC) which
reads effectively
the same way as clause 2.7(2) of the SMS Handbook. Clause 7.2
(c) reads as follows:
“
If
an employee is suspended or transferred as a precautionary measure,
the employer must hold a disciplinary hearing within a month
or 60
days, depending on the complexity of the matter and the length of the
investigation. The chair of the hearing must then decide
on any
further postponement.”
[10]
In that case, the
Minister
of Labour,
the Court confirmed on
review the finding of the arbitrator that employer in charging the
employee after the expiry of the 60 (sixty)
days committed an unfair
labour practice.
[11]
In
LLoyed v
CCMA and Another (2005) 26 ILJ 1039 (E),
the
Court found that the time frame for bringing disciplinary hearing
against the employee as set out clause 7.1 and 7.4 of Resolution
1 of
2001 to be peremptory and binding. In that case the delay in
instituting the disciplinary hearing against the employee for
the
first offence was 32 (thirty two) months after the occurrence of the
offence, a delay of 22 (twenty two) months after the second
offence
and a delay of 18 (eighteen) months after the investigation. The
court further fond that on the face of it the delay was
excessive and
in the absence of good cause unreasonable.
[12]
In my view the above approach is incorrect.
I specifically, with due respect do not agree with the decision in
Lovejoy Malambo
and believe that the decision was made in error. In dealing with the
broader principle of the consequences of failure by an employer
to
comply with the provisions of a disciplinary code, this Court in
National Union Of Mineworkers v Foskor
unreported case number JR 888/05,
held
that the correct approach to adopt was that enunciated in
Highveld
District Council v CCMA and Other
(2002) 12 BLLR 1158
(LAC).
See also
Khula Enterprise Finance
Limited v Madinane and others
(2004)
4 BLLR 366
(LC
) and
SA
Tourism Board v CCMA and Others
(2004)
3 BLLR 272
(LC).
[13]
In
Highveld
District Council
, the Labour Appeal
Court held that:
“
Where
the parties to a collective agreement or an employment contract agree
to a procedure to be followed in disciplinary proceedings,
the fact
of their agreement will go a long way towards proving that the
procedure is fair as contemplated in Section 188 (1)(b)
of the Act.
The mere fact that a procedure is an agreed one does not however make
it fair. By the same token, the fact that an
agreed procedure is not
followed does not in itself mean that the procedure actually followed
was unfair….
.
When
deciding whether a particular procedure was fair, the tribunal
judging the fairness must scrutinize the procedure actually
followed.
It must decide whether in all the circumstances the procedure was
fair.”
[14]
The above approach is similar to that
adopted in the case of
Leonard Dingler
(PTY) Ltd v Ngwenya
(1999) 5 BLLR 431
(LAC),
where Judge Kroon JA stated:
“
In
my judgement, and having regard to all circumstances, the time when
and the manner in which the apparent hearing was held, while
not
strictly in accordance with the appellants disciplinary code, were
substantially fair, reasonable and equitable.”
See
also
SA Tourism Board v CCMA And Others
[2004] 3 BLLR 272
(LC).
[15]
The decision of the Supreme Court of Appeal
(SCA) in
Denel (PTY) Ltd v D.P.G Voster
2004 (4) SA 481
(SCA)
, on the face of
it supports the approach in
Lovejoy
Malambo
. However on a proper analysis
the decision is distinguishable from that of
Leonard
Dingler and Lovejoy Malambo.
In
Denel
the SCA was dealing with a situation
where the disciplinary code was incorporated into the contract of
employment of each of the
employees. In this regard the Court held in
dismissing the contention of the appellant that it was not correct
that the only thing
required of the parties was that they act fairly
towards one another, despite the contractual obligation requiring
something more.
The other important point to note in
Denel
is that the matter came before the SCA
on appeal from the Pretoria High Court where the Court was faced with
having to decide on
damages for breach of contract of employment and
damages for
injuria
.
The claim for
injuria
was dismissed and the court confined itself to damages for breach of
contract.
[16]
Turning to the specific issue in the
present instance, in my view it could never have been the intention
of the parties that clause
2.7(2)(c) of the SMS Handbook should take
away the right of an employer to discipline an employee on the expiry
of the 60 (sixty)
days from the date of suspension. In essence the
case of the Applicant in the present instance is that the right of
the Respondent
to proceed with the disciplinary hearing prescribed on
the on the expiry of the 60 (sixty) days from the date of his
suspension.
[17]
In my view clause 2.7(2)(c) deals with
suspension and not the disciplinary action. There is nothing in this
clause that says an
employer would lose the right to discipline an
employee on the expiry of the 60 (sixty) days from the date of the
suspension. I
have not been able to find even a basis for implying
the interpretation sought by the Applicant or the one given by the
Court in
Lavejoy Malambo
.
At best, as I see it, the suspension falls away after the 60 (sixty)
days unless the chairperson of the disciplinary hearing extends
that
period.
[18]
The purpose of clause 2.7(2)(c), as I see
it, is to address the problem of protracted suspensions which
demoralizes and unfairly
prejudice the suspended employee. It would
appear that the mischief which the parties sought to address with the
provisions of
clause 7.2 was to deal with what Andre Van Niekerk J in
Mosweu Paul Magotlhe v The Member of the
Executive Council for Agriculture Conservation and the Environmental
and Another
soon to be reported
case
number J2622/08,
regarded as the
tendency by certain employers to:
“…
regard
suspicion as a legitimate measure of first resort to the most
groundless suspicion of misconduct, or worst still, to view
suspicion
as a convenient mechanism to marginalise an employee who has fallen
from the favour.”
[19]
Thus the right of the employee in the event
that the employer does not uplift the suspension on the expiry of the
60 (sixty) days
is to file an unfair labour practice claim or bring
an application to have an order directing the employer to uplift the
suspension.
I need to emphasize that in my view it could never have
been the intention of parties that the right to discipline by an
employer
would fall away on the expiring of the 60 (sixty) days.
[20]
The Court in
Magotlhe’s
case
quoted with approval what this
Court had said in
SAPO Ltd v Jansen van
Vuuren
[2008] ZALC 33
;
[2008] 8 BLLR 798
(LC)
. The
Court in that case was dealing with the abuse of power by the
employers through the use of suspensions. As stated earlier
the real
intention of the parties in promulgating clause 2.7(2)(c) of the SMS
Handbook was to address this abuse. The intention
was to curb the
power of employers in the public service from using protracted
suspension as a means of marginalising those employees
who may have
fallen out of favour. The intention of the parties was also to
minimise if not do away with the resultant detrimental
impact, the
prejudice on the affected employees, reputation, advancement, job
security and fulfilment that would arise from the
prolonged
suspension. See in this regard
SAPO
(supra)
(at paragraph 37).
[21]
In the circumstance the Applicant’s
application stands to be dismissed in as far as interdicting the
disciplinary hearing.
The sixty days having expired and the employer
having not taken any further steps in the initiation of the
disciplinary hearing,
I see no reason why the Respondent should not
be ordered to uplift the suspension and allow the Applicant to resume
his duties.
The Respondent should by now have completed its
investigations and therefore I do not see on what basis the
suspension should be
prolonged further.
[22]
In as far as costs are concerned, in my
view both law and fairness do not require that costs be ordered.
[23]
In the premises I make the following order:
(i)
The Applicant’s application to
interdict the Respondent from proceeding with the disciplinary
hearing is dismissed.
(ii)
The period of suspension of the Applicant
from his duties have expired and accordingly the suspension beyond
the 60 (sixty) days
is invalid.
(iii)
The Respondent is to permit the Applicant
to resume his duties as the State Attorney for Johannesburg within 5
days from the date
of this order.
(iv)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
23
rd
October 2008
Date
of Judgment :
5
th
February 2009
Appearances
For
the Applicant :
Adv M Khoza SC with Adv A N Nxumalo
Instructed
by :
N F Masenamela Incorporated
For
the Respondent: Adv B R
Tokota SC with Adv T A N Makhubele
Instructed
by :
The State Attorney
(Pretoria)