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[2010] ZALCJHB 61
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Semenya v Ngaka Modiri, Molema District Municipality and Others (J747/10) [2010] ZALCJHB 61 (16 April 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT
REPORTABLE
CASE
NO: J747/10
In
the matter between:
PORTIA
ANNA SEMENYA
Applicant
and
NGAKA
MODIRI, MOLEMA DISTRICT
MUNICIPALITY
1
st
Respondent
MATLOLE
N.O
2
nd
Respondent
ADV
ESJ VAN GRAAN N.O
3
rd
Respondent
DE
SWART
N.O
4
th
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
The applicant brought an urgent application
on the 8
th
April 2010, for an order on the following terms:
“
1.
dispensing with the requirements of the rules relating to times and
manner of service and directing that this
application be heard as an
urgent application in terms Rule 8 of the Labour Court Rules;
2.
declaring the suspension of the applicant to be unlawful and / or
violation of Section 33 of the Constitution and / or
unconstitutional;
3.
setting aside the applicants’
disciplinary hearing as unlawful;
4.
declaring the institution of
disciplinary proceedings against the applicant to be unlawful and /
or the violation of section 33
of the Constitution and or
unconstitutional;
5.
setting aside the institution of the
disciplinary proceedings against the applicant. Alternatively,
staying the disciplinary
proceedings instituted against the applicant
pending the final determination of the application to set aside the
disciplinary proceeding;
6.
directing the respondent to pay the
costs of this application; and
7.
further and or alternative relief.”
The
first respondent, a Municipality established in terms of section 12
of the Local Government: Municipal Structures Act No 117
of 1998,
opposed the application and raised a number of points
in limine
including urgency or lack thereof.
Background
facts
[2]
The applicant, is an employee of the first
respondent employed as a Chief Financial Officer (“CFO”)
and employed as
such on a 5 year fixed term contract. The second
respondent, Mr Matlole is an Administrator of the first respondent
appointed by
the MEC: Department of Local Government and Housing;
North West in terms of section 33 of the Constitution of the Republic
of South
Africa Act No 108 of 1996. The Administrator was appointed
on the 22
nd
July 2009.
[3]
The applicant was placed on suspension
during September 2009, pending the investigation concerning
misconduct on his part alternatively
poor work performance. The
charges which concern breach of Municipal Finance Management Act 52
of 2003, were served on the applicant
on the 12
th
November 2009, and the disciplinary hearing was set down for the 20
th
November 2009.
[4]
At the disciplinary hearing the applicant’s
representative raised a number of preliminary points including
amongst others
the authority of the Administrator to institute
disciplinary hearing against her. It was contended in this respect
that the power
to institute disciplinary proceedings vested with the
Municipal Manager in terms of section 55 (1) (g) of the Local
Government:
Municipal Systems Act.
[5]
The other point raised is that the
Administrator did not have the power to appoint the chair person of
the disciplinary hearing
as such appointment constituted procurement
of services by someone with executive and legislative
authority contrary
to the provisions of section 59 (1) (a) Act 32 of
2002.
[6]
The authority of the chair -person of the
disciplinary hearing was also challenged on the ground that he
purported to exercise the
power as the chair- person without
necessarily having the terms of reference giving to him power to
perform such a function.
[7]
The chair person of the disciplinary
hearing having heard the above objections ruled that he had the
pre-requisite jurisdiction
to conduct a disciplinary hearing.
The
grounds of urgency
[8]
The grounds of urgency are set out in both
the founding and supplementary affidavits of the applicant in
identically the same terms.
They are set out in the supplementary
affidavit as follows:
“
22.1
the disciplinary proceedings are scheduled to begin on Friday the 9
th
April 2010. The bases of this application are that my
disciplinary proceedings are procedurally flowed and are unlawful.
Should this matter not be heard on urgent bases, disciplinary
proceedings will be completed and I would have suffered irreparable
prejudice as a result and will have been required to go through the
expanse and difficulty of participating in an unlawful “sic.”
23
I summit that I have not unduly delayed in
approaching this court the relief. I only discovered all
about (sic)
the letter of appointment on the 12 March 2010 at the disciplinary
hearing. We then raised the preliminary point on
it and the chair
person only handed ex-tempory ruling on the 29 March 2010. I then had
to consult my attorneys and prepare this
application over the Easter
weekend.”
[9]
The principles governing consideration as
to whether or not to dispense with the requirements of the Rules
relating to the time
frames and to entertain a matter as one of
urgency and grant an interim interdict is well established in our
law. In terms of Rule
8 of the Rules of this court the applicant is
required to provide reasons why a matter should be entertained on an
urgent base.
The approach to be adopted in considering whether to
grant an interim relief is set out in
Harrison
Motor (Welkom) Ltd v Protea Motors, Warrenton and Another,
1973 (3)
SA 685
(A).
In terms of that decision
the applicant is required to show that he / she has a
prima
facie
right (even though may be open
some doubt), there is no alternative remedy available, there is a
reasonable apprehension that he
/ she will suffer irreparable harm if
the order is not granted, and the balance of convenience favours the
granting of the order.
Evaluation
[10]
After a lengthy debate Counsel for the
applicant conceded, correctly so, that it could not be said that the
issue of suspension
which arose in September 2009 needed to be dealt
with on an urgent bases. It was for this reason that the issue of
suspension was
abandoned by the applicant.
[11]
The issues that then remained for
consideration were; declaring the disciplinary proceedings instituted
against the applicant to
be unlawful, and setting them aside for that
reason.
[12]
The existence or otherwise of the
alternative remedy for setting the disciplinary proceedings on an
urgent bases was also debated
at length with Counsel for the
applicant. The existence of the alternative remedy was not disputed
by the learned Counsel. It was
however submitted on behalf of the
applicant that there was no reason for the applicant to be over
burdened with the cost of having
to engage legal representation at
the internal disciplinary hearing. It was further agued that the
alternative remedy was costly
because it entails the applicant having
to engage the services of the legal representatives in the internal
disciplinary hearing.
The applicant contended that this would
prejudice her.
[13]
In my view the above contention of the
applicant bears no merit. It is the applicant’s own choice to
use legal representation
at the disciplinary hearing. There is
nothing in law that she should appoint lawyers to represent her at
the internal disciplinary
hearing. The issue of affordability of
legal costs if she chooses to appoint legal representatives at the
disciplinary hearing
would be her own choice which she would have
made with no undue pressure from any one.
[14]
In my view, for the above reasons alone the
applicant’s application stand to fail. The application also
stands to fail because
the urgency it self created. In this respect
the applicant contended as indicated earlier that the institution of
the disciplinary
hearing was unlawful because it was instituted by
the administrator who did not have the power and authority to do so.
According
to her the authority to institute disciplinary proceedings
against employees in the Municipality vests with the Municipal
Manager.
[15]
The administrator instituted the
disciplinary proceedings against the applicant during November 2009
when he served her with the
charges of contravening the Municipal
Finance Management Act. The applicant did nothing to challenge the
exercise of that power
by the Administrator. There is no satisfactory
explanation as required by Rule 8 of the Rules of this court as to
why the alleged
unlawful exercise of the power to institute the
disciplinary hearing against the applicant has suddenly become urgent
in April
2010.
[16]
I see not reason in both law and fairness
why costs in the circumstances of this case should not follow
the result.
[17]
In the circumstances the application is
dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
8
th
April 2010
Date
of Judgment :
16
th
April 2010
Appearances
For
the Applicant :
Mr PT Motaung
Instructed
by :
Motaung Inc
For
the Respondent: Mr AD De
Swardt
Instructed
by :
De Swardt Vogel
Myambo Attorneys