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[2009] ZALCJHB 110
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Matuba v Greater Taung Local Municipality (J930/09) [2009] ZALCJHB 110 (14 August 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: J 930/09
In
the matter between:
MOOKGO
MARIA
MATUBA
Applicant
and
GREATER
TAUNG LOCAL MUNICIPALITY
Respondent
JUDGMENT
VAN
NIEKERK J
[1]
On 26 May 2009, the applicant filed an urgent application in which
she sought inter alia a declaratory order to the effect that
she had
been unlawfully suspended by the respondent and that she be allowed
to resume her duties. On 26 May 2009, the respondent
filed an
answering affidavit in which it recorded that the applicant was free
to return to work at any time. On the basis of this
statement, the
applicant returned to work. The only outstanding issue was that of
costs. On 28 May 2008, when the matter was called,
Cele J made an
order, by consent, that the application be postponed
sine die
,
and that the matter be decided by a Judge in Chambers on the basis of
heads of argument to be filed by the parties. The parties
subsequently filed heads of argument, and the Registrar placed the
file before me in Chambers for a ruling as contemplated by the
order.
[2]
The applicant is the municipal manager of the respondent. She claims
that the respondent unlawfully suspended her, and seeks
an order
uplifting the suspension and allowing her to resume her duties.
[3]
The facts giving rise to the application are not contentious. The
applicant was employed as the municipal manager of the respondent
in
terms of a fixed term contract. Clause 14 of the contract provides
that the respondent may suspend the applicant as a precautionary
measure if the applicant is alleged to have committed an act of
serious misconduct and the respondent believes that her continued
presence at the workplace might jeopardize any investigation into the
misconduct or the well being or safety of any person or municipal
property. In these circumstances, the respondent is obliged to give
the applicant an opportunity to make representations on why
she
should not be suspended. Further, the applicant is entitled to be
notified, in writing, of the reasons for suspension simultaneously
with or at least 24 hours after the suspension, and has the right to
respond within 7 working days. The wording of clause 14 is
drawn from
the relevant statutory protection afforded employees in the
applicant’s position. Also at issue in these proceedings
is
clause 13.5 of the applicant’s contract. That clause provides:
“
The Employer may grant the
Employee special leave with or without pay for a reasonable number of
working days with prior approval
in terms of the relevant special
leave policy of the Municipality.”
[4]
In February 2009, the applicant raised concerns about councillors
interfering with the administration of the respondent. It
appears
that during the same month, the council resolved to suspend the
applicant, but for reasons that are not entirely apparent,
did not
proceed to implement the suspension. On 6 April 2009 the applicant
wrote to the MEC for local government complaining of
interference by
councillors. The applicant was again suspended, this time on the
basis of allegations of corruption. After the
applicant threatened
legal action, the suspension was uplifted. On 14 May 2009, the
council held a special meeting and passed a
resolution. The
resolution provided that the applicant’s suspension be uplifted
with immediate effect, and that an internal
investigation be
conducted. For present purposes, paragraphs (g) and (h) of the
resolution are significant. These provide:
“
(g) That since the
allegations affect her work, the Municipal Manager be put on special
leave for 14 days with pay whilst
the investigation is on.
(h) That upon arrival
at work, the municipal manager be served with an intention for
suspension and further be afforded
the opportunity to make
presentation within seven (7) days from the day she receives a notice
of suspension”
(sic).
The
resolution was not unanimously adopted. A significant number of
councillors recommended that the applicant should not be placed
on
special leave but that she be allowed to report for duty and a letter
notifying her of an intention to suspend be served, and
that
depending on any representation received form the applicant, the
council would decide whether “to charge her or not.”
[5]
On 19 May 2009, the applicant presented herself for work and was
handed a letter signed by the mayor on the 18
th
. The
relevant part of the letter reads:
“
Council is also of the view
that your continued presence at work will
jeopardise
its investigations and grants you forthwith a special leave with
pay of 14 days whilst investigations are continuing. This is done
in
line with clause 13.5 of your employment contract
.
By copy hereof, you are invited to
make written representations within seven (7) days from today 18
th
May 2009, why you should not be suspended.”
[6]
On 20 May 2009, the applicant’s attorney wrote to the
respondent stating inter alia that placing the applicant on special
leave was “merely a suspension in another guise”, and
that an urgent application would be brought to uplift the suspension.
The respondent did not reply to the letter. On 26 May 2009, the
applicant filed this application, seeking the relief referred to
in
paragraph [1] of this judgment.
[7]
I turn now to the issue before me. The court has a wide discretion
to make orders for costs. Section 162 of the Act requires
that orders
for costs are made according to the requirements of the law and
fairness. In
NUM v East Rand Gold And Uranium Ltd
[1991] ZASCA 168
;
1992 (1) SA
700
(A), the court listed a number of factors that might
appropriately be taken into account, including the general rule that
absent
special circumstances, costs follow the result. In so far as
the merits of the applicant’s claim are concerned, I deal first
with the applicant’s suspension. The respondent contends that
the resolution is nothing more than an application of clauses
13.5
and 14 of the applicant’s contract of employment. In other
words, the effect of the resolution was to give notice of
the
respondent’s intention to suspend the applicant in future,
pending her written representations, but to grant her 14 days’
special leave, on full pay, in the interim. In my view, there is no
merit in this contention. Although no evidence has been placed
before
the court to indicate what the terms of the respondent’s policy
on special leave might be, it is clear from the wording
of clause
13.5 of the applicant’s employment contract that special leave
is leave sought at the initiative of the employee,
and granted by the
employer on that basis. The stipulation that special leave may be
granted with prior approval indicates that
it is not leave that may
be unilaterally imposed. In particular, clause 14 does not
contemplate that special may constitute a basis
on which to enforce
an employee’s absence from work solely at the employer’s
behest for reasons related to allegations
of misconduct. In the
present circumstances, the special leave has its genesis in the
council’s resolution that the applicant
“be put on a
special leave”. The wording of the resolution is clearly
peremptory, and does not contemplate an offer
that the applicant was
free to reject. To permit an employer unilaterally to enforce special
leave in circumstances where allegations
of misconduct are under
investigation is to permit the employer to avoid the protections
afforded the employee by clause 14, which
as I have indicated, are
protections that have a statutory origin.
[8]
To the extent that there is a dispute of fact on the papers as to
whether the applicant acquiesced and of her own volition accepted
the
special leave referred to in the respondent’s letter dated 19
May 2009, the respondent’s contention that the applicant
was
“merely given the choice not to come to work” is
untenable given the content of her attorney’s letter dated
20
May 2009, and the fact that the content of this letter, and in
particular, the averment that the applicant did not consent to
the
special leave, was never contested, nor was it stated that she had
acquiesced in the leave. The first indication of any averment
that
the special leave was voluntary appears in the answering affidavit,
along with the respondent’s statement to the effect
that the
applicant was free to return to work.
[9]
In relation to urgency, the loss suffered by an applicant in
circumstances such as the present is often non-pecuniary (see
Muller
v House of Representatives
(1991) 12 ILJ 761 (C). This court has
previously come to the assistance of suspended employees by granting
urgent relief on the
basis that the hardship suffered outweighs any
prejudice to a respondent. In my view, the applicant was entitled to
approach this
court on an urgent basis.
[10]
Finally, I fail to appreciate why the respondent failed to place its
version on record in response to the applicant’s
attorney’s
letter of 20 May. Had the respondent done so, and placed on record
its version that the applicant had not been
suspended and that she
was free to return to work, this application would not have been
necessary. Instead, the respondent’s
silence resulted in the
applicant being obliged to protect her rights.
[11]
In short, the respondent was not unilaterally entitled to place the
applicant on special leave and thus circumvent the protections
afforded the applicant by clause 14 of her contract of employment.
Placing the applicant on special leave in these circumstances
amounted to her unlawful suspension. The applicant made out a case
for urgent relief. The respondent could have avoided the necessity
of
this litigation had it responded to the applicant’s attorney’s
letter dated 20 May 2009, and had it made the tender
then that
appears in its answering affidavit. In these circumstances,
considerations of law and fairness dictate that the respondent
should
be liable for the costs of this application.
I
accordingly make the following order:
1.
The respondent is to pay the costs of this application.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date of
Judgment: 14 August 2009
Appearances:
For the
applicant: Mr. G Ray-Howett from Grant Ray-Howett Attorneys
For the
respondent: Adv A J Swart
Instructed
by: Kgomo Mokhetle & Tlou Attorneys