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[2009] ZALCJHB 69
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Mosiane v Tlokwe City Council (J202/09) [2009] ZALCJHB 69 (24 April 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: J202/09
In
the matter between:
RADINALEDIJOSIAH
MOSIANE
Applicant
and
TLOKWE CITY
COUNCIL
Respondent
REASONS
FOR THE ORDER MADE
FRANCIS
J
1.
The applicant brought an urgent application on 25 February 2009 for
an order declaring that his suspension from his position
as municipal
manager and accounting officer was invalid, unlawful and of nor force
and effect. He sought an order that he
be permitted to resume
his full duties as the respondent’s municipal manager and
accounting officer with immediate effect
with his full benefits.
2.
The application was opposed by the respondent who raised the issue of
urgency or lack thereof.
3.
After I had heard arguments, I struck the matter from the roll for
lack of urgency with costs. I said to the parties that
I would
provide reasons for the order that I made. These are my
reasons.
4.
The applicant is employed by the respondent as its municipal manager
and accounting officer. He was first suspended in
terms of a
letter dated 5 November 2008. On 18 November 2008 the
respondent passed a resolution rescinding his suspension.
In a
letter dated 20 November 2008 the respondent’s executive mayor
advised the applicant that if any disciplinary action
must be taken
against him, it must be consistent and meet the terms of the same
process as delineated in his legal and current
contract of employment
that he had entered with the respondent. As a result, all the
respondent’s councillors had until
Wednesday, 26 November 2008
by not later than 12h30 to submit in written form allegations against
him as the municipal manager/accounting
officer in the execution of
his duties to the office of the executive mayor. All of these
allegations would be submitted
to him as soon as possible after the
closing date and time for a response within 48 hours as prescribed by
his legal and current
employment contract would be afforded.
During January 2009 at the first sitting of the respondent’s
council for the
new year, he would, as instructed by the council in
terms of the resolution of 18 November 2008 submit a comprehensive
report on
the matter for its consideration and finalisation.
5.
In an undated letter delivered to the applicant on 8 December 2008,
the respondent’s executive mayor advised the applicant
that
written submissions had been received by his office alleging that he
had committed various serious offences. Such written
allegations were not provided to the applicant. He was called
to make submissions to the office why his suspension from his
designated duties including the provisions contained in paragraph 15
of his employment contract, should not be implemented.
He was
informed that the written submissions had to be delivered to his
office within 48 hours of receipt of the notification.
Should he fail
to respond within the specified time frame, a decision by the
respondent to suspend him would be considered without
taking his
submissions into account.
6.
On 9 December 2008 the applicant’s previous attorney addressed
a letter to the respondent that it was impossible for the
applicant
to respond to the allegations as outlined in their letter, as they
were vague, lacked detail and particularities.
The applicant
required copies of the actual written allegations submitted to the
respondent, with supporting and underlying documentation.
It
advised the respondent that the applicant was unable to respond to
the allegations in any meaningful way and would not be responding
to
same unless the written allegations were furnished to him, with all
the supporting and underlying documentation pertaining to
each
allegation.
7.
In a letter dated 19 January 2009, the respondent notified the
applicant of the respondent’s decision to suspend him.
The decision to suspend him was purportedly taken during a special
sitting of the respondent’s council on 12 January 2009.
8. The applicant
contended that his suspension was invalid and of no force and effect
in that it was effected in contravention of
the provisions of clause
16(1) and (2) of the Regulations and the provisions of clause 15 of
the employment contract. The
decision to suspend him was
purportedly taken at a meeting which did not comply with the
provisions of section 19 of the Systems
Act.
9.
The applicant launched this application on 6 February 2009 and
enrolled it for a hearing on 13 February 2009. The matter
was
postponed to 25 February 2009 after the parties had reached an
agreement about the filing of further affidavits.
10.
The applicant has set out in paragraph 5 of his founding affidavit
the grounds of urgency. He said that the notice of
suspension
was delivered to him on 19 January 2009. On 23 January 2009 his
attorneys of record addressed a letter to the
respondent contending
that his suspension was invalid and that such suspension should be
uplifted by 27 January 2009. No
such response was received.
He had to wait for the respondent’s response before taking any
steps to bring the application.
The respondent’s ruling
political party is the African National Congress (the ANC).
Shortly after he had delivered
his letter of 23 January 2009, George
Molapisi, the chairperson of the Potchefstroom branch of the ANC
advised the applicant that
the Provincial Executive Committee of the
ANC had instructed the respondent’speaker and executive mayor
to rescind the purported
resolution to suspend him and that such
rescission would take place on Friday, the 30 January 2009. He
had arranged to meet
with his attorneys of record to instruct them to
prepare this application on Friday, 30 January 2009. However,
because he
was advised by Molapisi, his meeting with his attorney of
record had to be cancelled. The purported resolution to suspend
him was not rescinded as he was advised.
11.
The applicant stated that the allegations made against him are a
matter of public record. The fact that he has been suspended
for alleged wrongdoing was also a matter of public record. The
fact that the respondent purportedly gave him an opportunity
to
respond to the allegations and that he has failed to do so is also a
matter of public record. Accordingly, to the relevant
public at
large, it is now considered that he has no answer to the allegations
made against him when in fact he has not been given
a fair and
reasonable opportunity to respond thereto. This clearly has
affected his reputation and credibility negatively.
12.
The applicant contended that if the application was not heard as one
of urgency, his reputation and character would continue
to be
tarnished due to the cloud of misconduct hanging over him. He
said that he would accordingly not obtain substantial
redress at a
hearing in due course as the relevant public would have finally
concluded that he has no answer to the allegations
made against
him. If this application is only heard at a later
stage, the suspension would have had a complete
negative impact in
him and would have prejudiced his reputation, advancement and job
security. A long time would pass before
a hearing takes place
in the normal course and during such long time, he would be viewed as
one who has no answer to the allegations
against him. He would
never be able to recover from such a wrong perception. The
personal and social consequences of
his suspension cannot be
measured. His social acceptability and usefulness are
negatively affected by the unlawful suspension.
Every day that
he is on suspension, his self-esteem and sense of self-worth that are
the essential components of his right to human
dignity are negatively
affected and eroded. A hearing in due course or at a later
stage would not afford him any substantial
redress as far as the
personal and social consequences of the suspension are concerned.
13.
The applicant said that in the circumstances, when regard is had
cumulatively to the fact that the purported decision to suspend
him
was taken in contravention of the Systems Act, the Structures Act,
his contract of employment, the Regulations with the grounds
of
urgency, in particular, the personal and social consequences of the
suspension, that the application deserved to be heard as
one of
urgency.
14.
Rule 8 of the rules of this Court deal with urgent applications.
It requires an applicant to provide reasons why the matter
is urgent
and why the rules of this Court have not been complied with.
Where a matter is urgent and a proper case has been
made out for
urgency this Court will grant such an application.
15.
A worrying trend is developing in this Court in the last year or so
where this Court’s roll is clogged with urgent applications.
Some applicants approach this Court on an urgent basis either to
interdict disciplinary hearings from taking place, or to have
their
dismissals declared invalid and seek reinstatement orders. In
most of such applications, the applicants are persons
of means who
have occupied top positions at their places of employment. They
can afford top lawyers who will approach this
Court with fanciful
arguments about why this Court should grant them relief on an urgent
basis. An impression is therefore
given that some employees are
more equal than others and if they can afford top lawyers and raise
fanciful arguments, this Court
will grant them relief on an urgent
basis.
17.
All employees are equal before the law and no exception should be
made when considering such matters. Most employees
who
occupy much lower positions at their places of employment who either
get suspended or dismissed, follow the procedures laid
down in the
Labour Relations Act 66 of 1995 (the Act). They will also refer
their disputes to the CCMA or to the relevant
Bargaining Councils and
than approach this Court for the necessary relief. Other
employees would still approach this Court
for relief in the ordinary
manner and not on an urgent basis.
18.
The reasons advanced by the applicant why urgent relief is sought
relates to his reputation. This can hardly be a basis
to
approach this Court for relief on an urgent basis. All
employees who get dismissed or suspended and believe that they
are
innocent, their reputations are tarnished by their dismissals
or suspensions. They will eventually get an opportunity
to be
heard where the employer should justify the charges against them.
Should they fail to do so, such employees will be
reinstated with no
loss of benefits. I accept that some damage to their
reputations would have been done. This Court
however is not in
the business of ensuring that an employee’s reputation should
not be tarnished. If so, it will open
the flood gates and this
Court will be inundated with many such applications.
19.
The grounds of urgency raised by the applicant and the type of
dispute before me are in my view not sufficient to allow the
applicant to jump the que. There is nothing exceptional about
this case that might require the applicant to jump the que.
If
the applicant feels strongly about his suspension and that his
reputation has been tarnished, he may have separate civil remedies
at
his disposal.
20.
It was for these reasons that I made the order of 25 February 2009.
__________________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
APPLICANT
: K
TSATSAWANE INSTRUCTED BY GILDENHUYS LESSING MALATJI ATTORNEYS
FOR
RESPONDENT
: C TODD
OF BOWMAN GILFILLAN INC
DATE
OF HEARING
: 25
FEBRUARY 2009
DATE
OF ORDER
: 25
FEBRUARY 2009
DATE OF
REASONS
: 24
APRIL 2009