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[2010] ZALCJHB 329
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Mapulane v Madibeng Local Municipality and Another (J20/2010) [2010] ZALCJHB 329 (9 February 2010)

IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO: J20/2010
Reportable
In
the matter between:
MOHLOPI
PHILLEMON
MAPULANE
Applicant
and
MADIBENG
LOCAL
MUNICIPALITY
First Respondent
ADV
VAN GRAAN SC N.O
Second Respondent
JUDGMENT
BHOOLA
J:
Introduction
[1]
This is an opposed urgent application in which the applicant seeks an
order
inter alia
that:
“
2.
A rule nisi is issued for the respondents to show cause on the date
and time to be
determined by the Registrar of the above Honourable
Court why:-
2.1
A declaratory must not issue that the suspension effected on 29
October 2009, suspending
the applicant from duty has terminated on 30
December 2009.
2.2
A declaratory must not issue that the decision of the second
respondent, taken on 28 December
2009, in particular paragraph 5
thereof (“the ruling”) is invalid, unlawful and of no
legal force and effect.
2.3
The applicant should not be permitted to resume his duties as a
Municipal Manager in terms
of the contract of employment signed on 30
April 2007”.
[2]
The application is opposed by the first respondent. The second
respondent does not oppose relief but filed an answering affidavit

for the purpose of assisting the Court.
Background
facts
[3]
On 30 April 2007 the applicant entered into a fixed term contract of
employment with the first respondent, in terms of which
he was
employed as Municipal Manager.
[4]
On 4 August 2009 the applicant was placed on special leave. This
decision was set aside by this Court on 7 August 2009.
[5]
On 13 August 2009 the applicant was suspended.
[6]
On 25 August 2009 this Court issued an order permitting the applicant
to resume duties.
[7]
On 30 October 2009 the applicant was again suspended.
[8]
On 7 December 2009 the applicant was served with notice to extend the
suspension.
[9]
On 17 December 2009 the applicant was served with a charge sheet and
notice to attend a disciplinary enquiry to be convened
on 28 December
2009. At the enquiry the applicant unsuccessfully challenged the
validity of the notice. Since the applicant was
overseas at the time,
and was represented by his attorney, the parties had agreed that if
the point
in limine
concerning the validity of the notice was unsuccessful the enquiry
would be postponed
sine die
.
[10]
On 7 January 2010 the applicant advised the first respondent of his
intention to resume his duties. The first respondent took
the
attitude that he is not entitled to resume duties as he remains
suspended.
Urgency
[11]
Mr Moshoana, appearing for the applicant, submitted that he is
entitled to be heard as a matter of urgency. His fixed term

employment contract expires on 31 March 2012 but is subject to
renewal should he fulfil all performance agreements. He can only

fulfil his performance agreements if he is allowed to resume his
duties. He bears statutory and fiduciary duties in terms of
inter
alia,
the Municipal Finance Management Act 56 of 2003, which he will be
unable to discharge should he remain suspended indefinitely.
The
applicant alleges that his continued suspension is unlawful, affects
his reputation as well as his advancement and the
fulfilment of his
contractual obligations:
Mokgotlhe
v Premier of the North West and others
[1]
and
Dladla
v Council of Mbombela Local Municipality & Another
[2]
.
[12]
Mr Rip, appearing for the first respondent, submitted that the
applicant is not entitled in law to renewal of his fixed term

contract. A new contract would have to be negotiated and the first
respondent would not be in a position to simply extend his current

term even if he met all his performance requirements. Moreover, the
first respondent has an acting municipal manager in place who
is
accountable for all its statutory functions. The applicant’s
reliance moreover on the abovementioned authorities is ill
founded in
that we are not concerned,
in
casu,
with an unlawful suspension. In the present instance the applicant
seeks relief declaring his suspension to have had lapsed in
terms of
his employment contract, not that the extension of his suspension
renders it unlawful. However, assuming for the purposes
of urgency
his suspension was unlawful, this, Mr Rip submitted, would still not
found urgency in that the applicant’s attorney
of record, in
his capacity as acting Judge of this Court, has held, albeit in
passing, that where a suspension is with pay an employee
who does not
demonstrate the right to work cannot be prejudiced:
Dladla
v Council of Mbombela Local Municipality & another
[3]
.
The applicant’s reliance on his fixed term contract and the
possible renewal thereof does not
per
se
found a right to work. Moshoana AJ found furthermore that an
applicant’s image and reputation cannot be the basis upon which

this Court can overturn a lawful suspension.
[13]
The first respondent conceded that the rules of this Court should be
dispensed with and the matter heard urgently and that
it was in the
interests of both parties to obtain clarity on the merits. I
proceeded to hear the merits although I am not satisfied
as to
urgency.
Analysis
[14] There are
principally two issues for determination on the merits:
(a)
Has the suspension of the applicant ended
by virtue of clause 17.4 read with clause 16.3 of his contract of
employment?
(b)
Has the second respondent extended the
suspension of the applicant, and if so, was he authorised to do so?
[15] I turn to consider
the second issue first, for purposes of convenience as that was the
order in which it was argued. The second
respondent states in his
answering affidavit that he was appointed to chair the disciplinary
hearing involving the applicant on
28 December 2009. He alleges that
there was no application before him to extend the 60 day period
contemplated in paragraph 17.4
of the applicant’s contract of
employment, which in his view he would have been authorised to do.
However, he states that
he had no authority to extend the applicant’s
suspension and did not make a ruling in respect thereof. The
contentious part
of the second respondent’s ruling, paragraph 5
(“the ruling”), is as follows:
“
In
the light of the fact that this disciplinary hearing has commenced
within the 60 day period contemplated in paragraph 17.4 of
the
employee’s contract of employment (annexure A to this notice),
the employee’s suspension has not been terminated
and the
employee is not entitled to return for duty as envisaged in the
aforementioned paragraph”.
[16]
In the light of these facts Mr Moshoana conceded that the second
respondent had not extended the applicant’s suspension.

This concession is in my view well made given the express wording of
the ruling and the indisputable averments of the second respondent.

Since no other basis was advanced for unlawfulness save for the
decision in this regard being
ultra
vires
and invalid, this dispenses with
the issue.
[17]
I turn now to consider whether the applicant’s suspension had
lapsed or ended by virtue of his employment contract.
[18]
In terms of the applicant’s employment contract the employer is
entitled to summarily terminate his employment for any
reason
recognized by law, including serious misconduct or any other conduct
that will justify summary dismissal at common law.
[19]
Clause 17.1 provides for precautionary suspension on full pay if the
applicant is alleged to have committed a serious offence
and if the
employer believes his presence at the workplace might jeopardize any
investigation or endanger the well being or safety
of any person or
municipal property.
[20]
Clause 17.4 provides:
“
Furthermore
if the employee is suspended as a precautionary measure, the
employer
must hold
a disciplinary hearing
within
sixty (60) days,
provided
that the
chairperson
of the hearing may extend such period
[4]
,
failing
which the suspension shall terminate and the employee shall return to
full duty”.
[21]
Mr Moshoana submitted that the first rule of interpretation is to
give these words their ordinary meaning. In interpreting
similar
provisions
(clause
7.2(c)
of Resolution 1 of 2003 of the Public Service Co-ordinating
Bargaining Council), the Court held in
Lekabe
v Minister: Department of Justice and Constitutional Development
[5]
that :
“
At
best, as I see it, the suspension falls way after
60
days
unless the chairperson of the disciplinary hearing extends
that
period
[6]
”.
and:
“
Thus
the right of the employee in the event the employer does not uplift
the suspension on the expiry of 60 days is to...bring an
application
directing the employer to uplift the suspension”.
[22]
Mr Moshoana submitted that on a proper reading,
Lekabe
suggests that any period of suspension
beyond 60 days is invalid. He relies on this as authority for the
proposition that in the
applicant’s suspension, the “
extended
period should not be more than 60 days
”.
Thus whereas the applicant’s suspension was extended for an
indefinite period, it was, on the authority of
Lekabe,
unlawful.  This means it is invalid and must therefore be
understood to have ended. It was on this basis that the applicant’s

attorneys informed the first respondent on 7 January 2010 that “
[i]n
terms of clause 17.4 of his contract of employment the suspension
terminated and our client is entitled to return to full duty”
.
The first respondent replied that in the light of 17.4 as confirmed
in the ruling, the applicant was still suspended and was not
entitled
to resume duty. Mr Moshoana contended that this was incorrect as, in
the light of
Lekabe
,
the 60 day period was peremptory and had ended.
[23]
Insofar as the first respondent had interpreted clause 17.4 to mean
that once the disciplinary enquiry had
commenced
the 60 day period was interrupted, this was incorrect Mr Moshoana
submitted.  It was common cause that the disciplinary enquiry

dealt with the validity of the notice to attend the enquiry and was
then postponed by consent between the parties. It is absurd
to
suggest that this would interrupt the period of suspension, and this
is factually incorrect as well as in direct conflict with
authority
to this effect. Clause 17.4 he submitted, must have envisaged that
the enquiry would
commence
and
be
completed
within
the 60 day period. Any other interpretation would create the
possibility of abuse by employers. This abuse was highlighted
by
Molahlehi J when he noted that the intention of the parties in
promulgating clause 2.7(2)(c) of the SMS handbook was to “
curb
the power of employers in the public service from using protracted
suspension as a means of marginalizing those employees who
may have
fallen out of favour. The intention of the parties was also to
minimize if not do away with resultant detrimental impact,
the
prejudice to the affected employee’s reputation, advancement,
job security and fulfilment that would arise from prolonged

suspension”
[7]
.
In light of this concern, Mr Moshoana cautioned the Court to be
vigilant in protecting employees.
[24]
Mr Rip submitted that the obligation to “
hold”
a disciplinary enquiry does not envisage a finalisation of the
enquiry. The requirements are met if the hearing has commenced,

notwithstanding that in this instance it was postponed by agreement
between the parties’ legal representatives, which agreement
was
confirmed by the second respondent. As a result the suspension
remains in place. Mr Rip submitted that the only issue of relevance

was the interpretation of clause 17.4 as
Lekabe
[8]
was not applicable. The continued suspension of the applicant did not
flow from the ruling but from clause 17.4 of his employment

contract.  Mr Moshoana submitted that if it was correct that the
suspension was “automatically extended” by virtue
of
merely commencing the enquiry, then the proviso in clause 17.4 to the
effect that the chairperson could extend the period is
rendered
meaningless.
[25]
Mr Moshoana also referred to the remark in
Lekabe
made by my learned brother Molahlehi J that since the investigations
into the employee’s alleged misconduct were complete,
there was
no rational and defensive reason why suspension should be prolonged.
In
casu
,
the applicant was charged with misconduct on 17 December 2009, at
which stage the investigation conducted by the first respondent
would
have been completed. On the facts as well as the law therefore the
first respondent could not justify the continuation of
the
suspension. Mr Rip agreed with Mr Moshoana’s submission that
this Court had an obligation to prevent abuse but contended
that in
the same vein the employer must have the opportunity to investigate
fully the more than 18 serious charges and multiple
sub-charges
involved concerning all manner of fraud and impropriety which are
involved here.  In any event, I fail to see
the relevance of
this submission given the concession as to lawfulness and given that
we are not concerned here with
audi
alteram partem
as in
Dince
v Department of Education North West Province and others
[9]
.
[26]
Mr Rip submitted that in addition to the interpretation of 17.4 there
was a second issue arising from the disciplinary enquiry,
i.e. the
agreement to postpone. The applicant refers to this as a “
tentative
agreement
” in that it was
contingent on the chairperson’s ruling. The facts however were
that the applicant had been abroad when
the hearing commenced and had
been represented by his legal representative who challenged the
validity of the notice of disciplinary
enquiry. It had been agreed
between the parties’ legal representatives that if the notice
was found to be valid after arguing
this point
in
limine
, the enquiry would be postponed
sine die
so
that it could resume when the applicant was present in the country.
This can hardly be said to constitute a “tentative”

agreement, and which would justify the lapse of the suspension.
Moreover, Mr Rip submitted, the applicant acknowledges that
that
there was no need to seek an extension. It brought and subsequently
withdrew an application to extend the suspension on 10
December 2009.
This was an erroneous application given the facts of this matter,
which the applicant would have realised and which
must have prompted
the withdrawal. There was accordingly no need for the chairperson to
order the extension of the 60 day period.
[27]
Mr Rip submitted further that the only relevant consideration was
whether the employee had been treated fairly or whether he
had been
subjected to an unfair labour practice. In
Jonker
v Okhahlamba Municipality and others
[10]
, my learned sister Pillay
J held, in responding to a contention that the time limits for
holding an enquiry had expired, that “..
the
procedures and time limits are a commitment to deal with discipline
expeditiously, and they serve as a guide as to how this
can be
accomplished. To hold that the procedure and the time limits are
written in stone and immutable must necessarily imply that
the first
respondent elected to abandon or waive its wide powers of discipline,
which the law requires it to exercise in a reasonable
manner. Why the
first respondent would contract away such substantial rights in
favour of the applicant is unfathomable. The waiver
or abandonment by
the first respondent cannot necessarily or reasonably be inferred
from the contract. Neither the terms of the
contract nor the conduct
of the first respondent’s representatives amounts to an
unequivocal waiver of the right to discipline
the applicant. (RAF v
Mothupi
2000 (4) SA 38
(SCA)).
This approach, Mr Rip submitted, is consistent with that of the
Labour  Appeal Court. Since the applicant is not relying on
a
waiver, whether the employee was treated unfairly is the key
consideration, and it was submitted that he had not been subject
to
any unfairness.
[28]
Accordingly, Mr Rip submitted, the applicant has failed to establish
the requirements for urgent interim relief, in that it
has failed to
show irreparable harm, lack of an alternative remedy, and that the
balance of convenience favours relief.  Mr
Moshoana submitted
that fairness was not the relevant test and the
Jonker
[11]
dictum
was
not applicable. He reiterated that the courts have recognised, as in
Dince
[12]
,
that suspension “
has
substantial prejudicial consequences relating to both social and
personal standing of the suspended employee
”,
[13]
and that although the suspension of the applicant is with pay, the
benefits associated with his position (among others, use of
a credit
card and laptop), have been denied him.  The automatic extension
of the suspension leads to a manifest injustice
to the applicant and
also prejudices the first respondent as well as the taxpayer. In
addition, Mr Moshoana submitted, the suspension
affects the
applicant’s job security, his personal advancement and
fulfilment, but is also causing irreparable harm to his
dignity. He
continues to suffer prejudice and the balance of convenience favours
the granting of relief in that the extension of
the 60 day period is
unlawful.
[29]
I do not  consider
Lekabe
to
be authority for the proposition advanced by the applicant, and Mr
Moshoana appeared to concede this.
Lekabe
dealt
with provisions (Public Service Co-ordinating Bargaining Council
Regulations and clause 2.7.(2)(c) of the Senior Management
Service
Handbook) substantially different to those contained in the
applicant’s employment contract. It is further distinguishable

in that it was common cause that the employer had failed to take
steps to discipline within the 60 day period. At issue therefore
was
whether thereafter it could still discipline the employee. The court
held: “
The
60 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”
[14]
.
However although I did not understand him to be expressly
relying on a waiver, Mr Moshoana cited
Mlambo
& another v Head of Department : North West Department of
Agriculture, Conservation & Environment and another
[15]
as
authority for the proposition that once the period of suspension had
expired, the employer no longer had any right to discipline
the
employee. In
Lekabe
Molahlehi J however correctly declined to follow
Mlambo
,
which he considered to be wrong.
[30]
Insofar as Mr Moshoana cited
Minister
of Labour v General Public Service Sectoral Bargaining Council &
Others
[16]
as
further support for the submission that the 60 day period had
expired, Molahlehi J also distinguished this. In dealing with the

issue in
Lekabe
he pointed out that the considerations taken into account by Francis
J therein on review were not relevant to declaratory relief.
In that
decision
[17]
,
my
learned brother Francis J held:  “
It
is clear from clause 7.2 (c ) of the resolution that after an
employee has been suspended a disciplinary hearing must be held

within a month or 60 days. If the matter is complex, the disciplinary
hearing must be held within 60 days and the chairperson of
the
hearing must then decide on any further postponements. The suspension
can therefore not exceed more than 60 days without a
disciplinary
hearing being held. Facts can be placed before the chairperson to
grant a further postponement due to the complexities
of the matter”.
Francis
J was dealing with a situation where the applicant had referred an
unfair labour practice dispute arising out of his suspension.
More
than six months after he was suspended and an arbitration award was
issued, the employer initiated disciplinary proceedings,
but this did
not proceed. The employer then sought to review the award. The
applicant conceded at the review that there was no
substance to its
review relating to the interpretation of clause 7.2 (c ) given that
the issue before the arbitrator was whether
the suspension was
unlawful in that it exceeded the period mentioned in the clause. The
arbitrator was not required to determine
the interpretation of the
clause.  The review was dismissed. Although I agree that
Minister
of Labour
is distinguishable on the facts, it is implicit from the above
dictum
that notwithstanding a postponement by the chairperson in a complex
matter, a disciplinary hearing that has commenced can still
be said
to have been “
held”.
[31]
In considering whether to grant relief in applications of this nature
this Court has consistently applied the test established
in
Erikson
Motors (Welkom) Ltd v Protea Motors, Warrenton & another
[18]
.  This requires an
applicant for interim relief to establish
prima
facie
the right that forms the basis for the application even though open
to some doubt; a well grounded apprehension of irreparable
harm if
interim relief is not granted; the absence of any other satisfactory
remedy and that the balance of convenience favours
granting of
relief. In applying this test to the facts and submissions presented
it is clear that the applicant has failed to meet
the threshold
requirements for interim relief.
[32]
In the circumstances, I make the following order:
(a)
The application is dismissed, with costs.
___________________
Bhoola
J
Justice
of the Labour Court of South Africa
Date
of judgment: 09.02.10
Appearance:
For
the applicant: Mr G N Moshoana, Mohlaba and Moshoana Inc.
For
the first respondent: Adv Rip SC instructed by   De Swardt
Vögel Myambo
[1]
[
2009]
30 ILJ 605 [LC] at 616 para 31, 618 para 36, 620 para 44 and 611
para 16-18.
[2]
[2008]
29 ILJ 1863 [LC] at page 1899 para 13-19 and page 1900 para 14F.
[3]
(2008)
29 ILJ 1902 (LC).
[4]
Mr
Moshoana’s emphasis.
[5]
(2009)
30 ILJ 2444 (LC) at para 17 and 19.
[6]
Mr
Moshoana’s emphasis
[7]
Lekabe
supra para [20].
[8]
Supra.
[9]
Unreported
judgment of Molahlehi J under case number J2234/09 and J2193/09
dated 5 November 2009.
[10]
[2005] ZALC 22
;
[2005]
6 BLLR 564
(LC) at para
[20]
.
[11]
Supra.
[12]
Supra
note 8.
[13]
Dince,
supra at para [23].
[14]
Supra,
at para [21].
[15]
U
nreported
at case number CA1202/06.
[16]
(2006)
27 ILJ 2650 (LC).
[17]
Supra
at para 11.
[18]
1973
(3) SA 685
(A).