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[2010] ZALCJHB 340
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Thobejane v Mogalakwena Municipality (J2441/10) [2010] ZALCJHB 340 (7 December 2010)
iAfrica
Transcriptions (Pty) Limited
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO:
J2441/10
2010-12-07
In
the matter between
THOBEJANE,
MAMAGABE
HENRY
Applicant
and
MOGALAKWENA
MUNICIPALITY
Respondent
J
U D G M E N T
STEENKAMP
J
:
This is an application
for a
rule nisi
for the respondents to show cause on the
return date why, firstly, a declaratory order must not be issued that
the second respondent,
one Shella William Kekana, who is
the current municipal manager, does not have any legal authority or
power to institute
any disciplinary proceedings against the
applicant; secondly, a declaratory order that the decision of
the respondents --
that is the municipal manager and
Mogalakwena Local Municipality -- to place the applicant on
suspension is invalid,
unlawful and of no legal force and affect;
thirdly, that the applicant is permitted to resume his duties as
manager: corporate
support services.
The
applicant is Advocate Mamagabe Henry Thobejane. He is the
manager: corporate support services of the municipality.
He was
suspended on 24 November 2010, subsequent to a resolution by the
municipality that followed on a report of the municipal
manager.
The applicant attacks the suspension on the basis, firstly, that the
municipal manager did not have the authority
to suspend him; and
secondly, that the respondents have not complied with clause 14 of
his contract of employment. Related
to the second argument, is
a third argument that the respondents have in any event not complied
with the
audi alteram partem
principle.
I
will deal with those issues in turn.
In
limine
though, Mr
Vente
r,
who appears for the respondents, has raised two issues.
Firstly, he points out that the notice of motion that was served
on
the municipality was signed, not by an attorney, but by Advocate
Maunatlala
who appears for the applicant in this hearing. The court file,
though, contains a notice of motion that is headed “amended
notice of motion”, that is indeed signed by an attorney,
Mr R K Mashego. It appears that the
municipality’s
attorneys drew the applicant’s attorney’s
attention to the fact that the notice of motion appeared to be
irregular
and that the applicant’s attorneys attempted to
rectify that irregularity by filing an amended notice of motion.
The
applicant’s attorney and counsel contend that the amended
notice of motion signed by the attorney was sent to the respondents,
although Mr Venter has no record of that having being done.
I
will, for the sake of expedience and having heard full argument in
this matter, except that this may have been a
bona
fide
oversight on the part of the
applicant’s attorneys that has not led to any prejudice for the
respondent. I will therefore
proceed and have proceeded to hear
the matter despite that objection by Mr Venter.
The
second issue is a jurisdictional question and that is that it
appears, at least from the founding affidavit, that the applicant
has
relied on an unfair labour practice as set out in Section 186(2)(b)
of the Labour Relations Act (Act 66 of 1995)
in which to found
his claim.
In
reply, the applicant’s counsel has explained that that is not
his client’s sole cause of action. With reference to
the notice
of motion where I am asked to declare that the decision to suspend
the applicant is “invalid, unlawful and of
no legal force and
effect”, he points out that the claim is not founded solely on
section 186(2)(b).
I
will, once again, accept that I have jurisdiction to deal with the
matter and I will address the question of an unfair labour
practice
again when dealing with the requirements for an interim interdict.
Turning
then to the merits:
Firstly,
I consider the allegation that the municipal manager did not have the
authority to either suspend or institute any disciplinary
proceedings
against the applicant. That argument is based on a further
argument that the municipal manager was not validly
appointed in
terms of the Municipal Systems Act (Act 32 of 2000). However,
that appointment was made as far back as July
2009. It has not
been challenged, not before me or in other proceedings before this
court or in any other court. The
decision to appoint a
municipal manager therefore stands. It has not been set aside
and I must accept, until another court
may come to a different
conclusion, if challenged, that the appointment was validly made.
The
relief sought under prayer 2.1 is dismissed.
I
turn then to the question of compliance with the
audi
alteram partem
and compliance with
clause 14 of the contract of employment. It would be convenient
to quote that clause in full.
Under
the heading, “precautionary suspension”, clause 14.1
reads as follows:
“
The
employer may suspend the employee on full pay if he is alleged to
have committed a serious offence and the employer believes
his
presence at the workplace might jeopardise any investigation into the
alleged misconduct or endanger the wellbeing or safety
of any person
or municipal property; provided that, before an employee is suspended
as a precautionary measure, he must be given
an opportunity to make
representation on why he should not be suspended”.
Clause 14.2 goes on to
say:
“
The
employee who is to be suspended must be notified in writing of the
reasons for his suspension simultaneously or at the latest
within 24
hours after the suspension. He shall have the right to respond
within seven working days”.
As
an aside, I should also note that as is prescribed for the employees
of local government, if the employee is suspended as a precautionary
measure, the employer must hold a disciplinary hearing within 60
days.
It
is common cause that the employee in this case was given only two
hours to respond to a notice notifying him of the intention
to
suspend him. He did respond and in his response he quoted both
clause 14.1 and clause 14.2 in full. He then said
in his letter
in reply:
“
I
believe that a suspension must not be used for ulterior motives or to
punish an employee. If suspension is preferred, I
request that
I be given seven working days to respond to the allegations as
provided for in my employment contract”.
I
have debated the interpretation of clause 14 with the applicant’s
counsel. It appears to me quite clear that the clause
does
envisage a bifurcated procedure, namely, in terms of clause 14.1,
that the employee must be given “an opportunity to
make
representation”
before
he is suspended; and then, in terms of clause 14.2, once he is or has
been suspended, he has the right “to respond within
seven
working days”, in other words, within seven working days after
the suspension has taken effect.
It
is common cause that the employee in this case, who is an admitted
advocate of the High Court, did not take the opportunity to
make use
of the process outlining clause 14.2. His complaint is that the
opportunity to make representations in clause 14.1
was not sufficient
in that space of two hours.
In
this regard, I take into account what
His Lordship, Mr Justice Van Niekerk had to
say in
Mogothle v Premier of the North
West Province
2009 (4) BLLR 331
(LC) at
paragraph [37]. Referring back to previous decisions of this
court, confirming the right to be heard prior to suspension,
he said
the following:
“
I
do not think that what the court intended by this statement, was that
a hearing prior to a suspension should be modelled on what
has been
termed the ‘criminal justice model’ with all of the
hallmarks of a criminal trial. This court has held
previously
that the Code of Good Practice: Dismissal in Schedule 8 to the LRA
envisages a less formal process, one in which the
employer and
employee engage in what the ILO’s committee of experts has
termed in the context of pre dismissal procedures,
a process of
dialogue and reflection between the parties. I see no reason
why the same conception of procedural fairness
should not apply prior
to a proposed suspension pending an investigation into alleged
misconduct”.
Having
regard to that
dictum
and to the Code of Good Practice, it appears to me that the informal
process followed before suspension in this case, albeit that
it could
be criticised for having been of a fairly short duration, is no way
illegal, unlawful or invalid.
The
employee had a further opportunity to make full representations as
envisaged in clause 14.2 of his contract of employment.
He was
alive to that process, as is clear from the letter that he addressed
to the employer on 24 November 2010. He signs
the letter as
Advocate M H Thobejane and I must accept that he is
versed in legal process. There is no indication
on the
affidavits before me why he did not take the opportunity to make use
of that further vehicle to make representations.
That
then deals with the question of clause 14 of the contract of
employment and in terms of that process, I am also satisfied that
the
employer has complied with the
audi
alteram partem
principle as embodied in
the contract of employment itself.
The
application for the relief sought in paragraphs 2.2 and 2.3 must
therefore also fail.
The
applicant’s counsel did raise one further problem with regard
to the suspension and that is that it was not based on serious
misconduct and that there was no reason for the suspension. I
am loath to express an opinion without having heard evidence
on the
merits of the matter as to what “serious misconduct” in
this context entails. The municipality has alleged
that it
suffered financial loss as a result of the applicant’s conduct.
In
terms of the well-known rule in
Plascon
Evans Paints Ltd v Van Riebeecck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A), I have to accept that that is so. I am not
sitting here as a chairperson of disciplinary hearing. That hearing
has to
be held within 60 days and it is for the chairperson of that
hearing to decide whether there was any misconduct and if so, whether
the misconduct was serious.
On
the papers before me, I am satisfied that the alleged misconduct is
serious enough to justify suspension in circumstances where
it is
alleged that the applicant will have the opportunity to interfere
with documentary evidence and witnesses.
Although
the applicant is suffering harm, that harm is not irreparable.
The disciplinary hearing must take place within
60 days and he will
have the opportunity to clear his name. He also has an
alternative remedy with regard to the alleged
unfair labour practice
complained of. In terms of section 186(2)(b) of the LRA that
conduct, namely, an unfair suspension,
must be referred to the South
African Local Government Bargaining Council for resolution.
To
conclude then, the applicant has not established a
prima
facie
right and has not discharged the
onus of proving the other elements of an interim interdict.
Although
both parties have asked for costs to be awarded to the successful
party, I bear in mind that the applicant is still a senior
employee
of the municipality. If the disciplinary enquiry does not find
that he has committed misconduct, he will resume
his duties within
the next two months. He will have to forge a new relationship
or a renewed relationship with both municipality
and the municipal
manager, Mr Kekana. In those circumstances I am of the view
that an adverse costs order would have a chilling
affect on that
relationship.
I
therefore make the following order:
The
application is dismissed. There is no order as to costs.
---oOo---
______________________________
STEENKAMP
J
7
December 2010
For
the applicant: Adv MI Maunatla
Instructed
by: Mashego attorneys
For
the respondents: Adv R Venter
Instructed
by: Mohale Inc.