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[2010] ZALCJHB 335
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Mathe v Minister of Water And Environmental Affairs (J771/10) [2010] ZALCJHB 335 (20 May 2010)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J 771/10
In the matter between:
MATHE
ZANDILE
Applicant
and
THE
MINISTER OF WATER AND
ENVIRONMENTAL
AFFAIRS
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
1.
This matter concerns an application to execute a judgment handed down
by Pillay J on Friday, 7 May 2010, setting aside the Applicant’s
precautionary suspension by the Respondent on 30 March 2010 on the
ground that was unlawful.
2.
To give effect to the court’s finding that the suspension was
unlawful, the court permitted the Applicant to resume duty
with the
Respondent, which she did on Monday 10 May 2010.
3.
However, on the same day, the Respondent filed a notice of its
application for leave to appeal, the effect of which was to suspend
the judgment of Pillay J, pending the outcome of the application for
leave to appeal, meaning that the Applicant only briefly enjoyed
the
benefit of the order.
4.
This led her to bring the application now before the court on an
urgent basis The matter was originally set down to be heard
on 14 May
2010, but was postponed to consent of the parties until 19 May 2010.
5.
Apart from opposing the application, the Respondent also brought an
application to strike out certain averments made by the Applicant
in
her replying affidavit which I will address in the course of
evaluating the merits of the application below.
Legal
Principles
6.
The principles governing the execution of a judgment despite a
pending appeal were set out in
South Cape Corporation (Pty) Ltd
v Engineering Management Services (Pty) Ltd
1977 (3) SA
534
(A)
:
“
The Court to which
application for leave to execute is made has a wide general
discretion to grant or refuse leave and, if leave
be granted, to
determine the conditions upon which the right to execute shall be
exercised (see Voet, 49.7.3; Ruby's Cash Store
(Pty.) Ltd. v Estate
Marks and Another, supra at p. 127). This discretion is part and
parcel of the inherent jurisdiction which
the Court has to control
its own judgments (cf. Fismer v Thornton,
1929 AD 17
at p. 19). In
exercising this discretion the Court should, in my view, determine
what is just and equitable in all the circumstances,
and, in doing
so, would normally have regard, inter alia, to the following
factors:
(1)
the potentiality of irreparable harm or prejudice being sustained by
the appellant
on appeal (respondent in the application) if leave to
execute were to be granted;
(2)
the potentiality of irreparable harm or prejudice being sustained by
the respondent
on appeal (applicant in the application) if leave to
execute were to be refused;
(3)
the prospects of success on appeal, including more particularly the
question as to
whether the appeal is frivolous or vexatious or has
been noted not with the bona fide intention of seeking to reverse the
judgment
but for some indirect purpose, e.g., to gain time or harass
the other party; and
(4)
where there is the potentiality of irreparable harm or prejudice to
both appellant
and respondent, the balance of hardship or
convenience, as the case may be.”
[1]
The
potentiality of irreparable harm or prejudice to the Respondent
7.
The respondent cites four instances of the harm it anticipate
suffering in consequence of the applicant’s return to work,
which it submits is indicative that the applicant did not intend to
‘return quietly to the office’.
8.
The first relates to the Applicant sending an email to the Minister’s
Personal Assistant advising her that she is reporting
certain conduct
of officials in the Department of Water Affairs to the Public
Protector and the Auditor-General. The respondent
does not object to
such a report being made but objects to what it understands to be the
threatening tone of the letter.
The email was sent on Sunday 9
May before the applicant returned to work, making use of a
subordinate’s computer, her own
having been confiscated when
she was suspended. The Applicant defends her right to send the email
in terms of her rights under
the Protected Disclosure Act pursuant to
her belief that disciplinary action is being taken against her as a
result of making protected
disclosures in relation to her project.
9.
The Respondent identifies this as prejudicial because it demonstrated
that the Applicant has contact and access to her subordinates
outside
office hours.
10.
The third instance of prejudicial conduct identified by the
Respondent concerns second to an SMS the applicant sent to
a
subordinate requesting him to meet with her on her return to work on
Monday and requesting him to withdraw a ‘revenue indaba
agenda’
as there was no need for it, followed by the remark ‘the game
is over’. The Respondent argued this indicated
a belligerent
approach by the Applicant which was threatening. The Applicant
contends that she merely postponed the meeting
because she was
not satisfied that preparation for it were in place and certain
reports she had requested from the subordinate
concerned were still
outstanding.
11.
Lastly, the Respondent notes that the Applicant will be in the same
building as her subordinates and was in charge of the WTE
Efficiency
Drive Project having five directors and ‘about 60 people’
under her supervision, which would enable her
to unduly influence
them during the ongoing investigation and disciplinary process. The
Applicant responds that she had 200 employees
under her supervision
and had complied with the directive not to be involved in the project
any longer, as evidenced by her email
of 11 March 2010 confirming her
willingness to abide by the directives of the Director General and
Chief Financial Officer in that
regard.
The
potentiality of irreparable harm or prejudice to the Applicant
12.
By contrast the Applicant cites the fact that in all likelihood the
leave to appeal hearing is unlikely to be heard before the
end of May
or June, which would mean that in the interim she would be deprived
of the enjoyment of her right to not suffer the
consequences of
unlawful suspension.
13.
In her replying affidavit the Applicant sought to expand on another
form of prejudice she would suffer in relation to her ongoing
MBA
studies. The Respondent objected to her claims that her studies
required her to be at work and pursue her skills failing
which she
would be required to pay back the costs of her MBA to her employer.
Mr Notshe, for the Respondent, argued that these
averments raised
fresh issues in reply and for that reason ought to be struck out in
keeping with the requirements of Rule 7(5)(b)
of the Labour Court
rules. Mr Bruinders, for the Applicant, argued that the
issue of prejudice relating to the applicant’s
MBA studies was
prefaced in her replying affidavit in the original application to set
aside her suspension. It is true that
in that affidavit the
applicant alludes to her MBA studies in the context of talking about
her reputation and the importance of
her professional advancement,
but there is no indication there of the associated financial
liability which could arise from that
study commitment as a result of
her suspension. In terms of the general principle that an
applicant should not make out a
case in reply and applying the
principles in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 634 – 5, I
have not taken account of the averments objected to by the Respondent
in reaching my decision.
14.
The Respondent counters that as the Applicant is being paid while on
suspension there is no real demonstrable prejudice she
is suffering.
15.
It seems the principal complaint about the prejudice suffered by the
Applicant concerns the fact that if she is eventually vindicated
in
due course following the outcome of an appeal, it will be an
empty consolation because the benefit of enjoying the right
to be
back at work on account of her unlawful suspension cannot be
meaningfully remedied at that point. The remedy for an
unlawful
suspension is aptly the restoration of the employee to the workplace,
which reverses the effect of the unlawful action.
The benefit flowing
to an employee who successfully overturns an unlawful suspension is
not one that can easily be remedied in
retrospect.
16.
Mr Notshe suggested that the Applicant might have recourse to a claim
for constitutional damages or ordinary damages, and that
she had
prospect of obtaining relief from her referral of her suspension to
the relevant bargaining council. The latter claim
is one
relating to the unfairness of her suspension in terms of the Labour
Relations Act and as I understand it is distinguishable
from the
present matter which turned on the unlawfulness of her suspension. Mr
Notshe did not elaborate on what basis the Applicant
might have a
claim which would entitle her to constitutional damages if she is
ultimately successful and it is not readily apparent
where such a
claim might lie.
17.
In weighing up the relative prejudice to the parties, it is notable
that Respondent does not provide a factual basis which demonstrates
there is a basis for a real apprehension the applicant will interfere
with the investigation into her former project or that she
will
interfere with witnesses. It is this type of prospective harm which
an employer can rightly rely on to implement a precautionary
suspension after giving the employee an opportunity to respond to
such concerns. Insofar as the Applicant took certain actions
on the
eve of her return to work those appear to relate to her previously
stated interest in making known her concerns about certain
practices
and decisions which she believes are the real reasons behind her
suspension. Nowhere in its answering affidavit
does the
Respondent adduce any evidence that the Applicant is unlikely to
adhere to her undertaking not to interfere with the investigation
or
that any potential witnesses will probably be intimidated or
influenced by her.
18.
Moreover, I was advised that charges have now been served on the
Applicant and it would seem reasonable to believe that the
investigatory phase is over so any potential risk that might have
existed of her compromising the investigation by virtue of being
at
work should no longer be a consideration, in the absence of any
evidence to the contrary.
19.
The fact that the Applicant may be raising her concerns about alleged
improper conduct of others or querying the wisdom and
justifiability
of some decisions taken is not the kind of activity that a
precautionary suspension, in my view, is intended to
prevent.
In the absence of demonstrable prejudice to the employer’s
ability to investigate and present the charges
against her, or of a
basis for a reasonable apprehension that such prejudice will arise on
account of her being at work, I believe
the prejudice to the
Applicant of remaining suspended, even if she is ultimately
successful, outweighs the prejudice the Respondent
will suffer if she
remains at work and its action is vindicated on appeal.
Merits
of Application for Leave to Appeal
20.
In the absence of the reasons for Pillay J’s judgment it is not
possible to assess this factor in any depth. The
claim made by
the Applicant her suspension was unlawful seems to have rested
primarily on the Respondent’s failure to afford
the Applicant a
hearing before the suspension was imposed, which does not appear to
be in contention. If that was the basis for
the decision then the
Respondent’s prospects of success might not be particularly
good. Be that as it may, in this instance
I must rely on assessing
the balance of prejudice to the parties in arriving at a decision.
21.
It must be
mentioned that this is an interlocutory order, and may be corrected,
altered or set aside at any time before final judgment
if changing
circumstances warrant it.
[2]
Order
22.
Accordingly,
a.
The Applicant’s non-compliance with the Rules relating to form,
service and times,
is condoned and the applicant is permitted to
bring the application as an urgent application in terms of
Rules 8(1) and (2);
b.
The Applicant is granted leave to execute the judgment of Pillay J
dated 7 May 2010, pending leave
to appeal and appeal;
c.
Respondent is directed to pay the costs of this application,
including the costs of two counsel.
ROBERT
LAGRANGE
JUDGE
LABOUR
COURT
Date
of Hearing: 19 May 2010
Date
of Judgment: 20 May 2010
Appearances
For
the Applicant:
T
Bruinders, SC assisted by K M Millard
Instructed
by Xulu Liversage Incorporated Attorneys
For
the Respondent:
S
V Notshe, SC assisted by M C Baloyi
Instructed
by the State Attorney
[1]
At 545B-G. See also
Julies
v County Fair Foods (Pty) Ltd
1999 (20) ILJ 368 (LC)
at
369-370
[2]
See
Southern
Cape
(supra) at 550H