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[2011] ZALCJHB 193
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Thobejane v Mogalakwena Local Municipality and Another (J46/2011) [2011] ZALCJHB 193 (19 January 2011)
Not reportable
Of interest to other judges
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD AT JOHANNESBURG
CASE
NO: J 46 /2011
In the matter between:
MAMAGABE
HENRY THOBEJANE
.................................................
Applicant
and
MOGALAKWENA
LOCAL MUNICIPALITY
..........................
First
respondent
SHELLA
WILLIAM KEKANA
...........................................
Second
respondent
JUDGMENT
STEENKAMP J:
Introduction
This is an urgent application brought during the court recess. As
the duty judge, I dealt with it over the telephone from the
Labour
Court in Cape Town. The parties conducted their argument in
Johannesburg.
The applicant, Thobejane, is the Manager: Corporate Support Services
of the first respondent (“the municipality”).
The second
respondent is the municipal manager.
The applicant previously brought an urgent application before me in
Johannesburg on 7 December 2010. He prayed for a declaratory
order
declaring his suspension to be “invalid, unlawful and of no
force and effect”. The suspension was a precautionary
one
arising from an investigation into alleged serious misconduct by the
applicant. The applicant also sought a declaratory order
that the
municipal manager (the second respondent in that application and in
this one) had no legal authority to institute disciplinary
proceedings against him.
I handed down an
ex tempore
judgment on 7 December 2011
dismissing the application with no order as to costs. On 10 December
2010 the applicant delivered
an application for leave to appeal.
Despite the fact that his attorney of record was present in court
when I read the
ex tempore
judgment into the record, he did
not request a copy of the transcript of the judgment. I did so upon
my return to chambers during
the recess period, on 14 January 2011,
when the application for leave to appeal was brought to my
attention. At the time when
this application was heard today, on 19
January 2011, the transcript was not yet available.
What the applicant now seeks on an urgent basis, is for his
disciplinary hearing scheduled for 20 January 2011 to be stayed
pending the outcome of the “finalisation of the appeal”
under case number J 2441/2010 (ie the judgment of 7 December
2010).
I will deal, firstly, with the issue of urgency, and then for the
requirements for an interim interdict.
Given that the disciplinary hearing is scheduled for tomorrow, my
written reasons will be brief.
urgency
I handed down judgment in the earlier urgent application (under case
number J2441/1010) on 7 December 2010. The applicant applied
for
leave to appeal on 10 December 2010. He only brought this
application more than a month later, on 14 January 2011.
I take into consideration, though, that the notice to attend a
disciplinary hearing was only served on the applicant on 12 January
2010.
The applicant is justly criticised by the respondents for not
clearly establishing the grounds for urgency in his founding
affidavit. Nevertheless, given the fact that he received the notice
on 12 January 2011, I am prepared to accept that the matter
should
be dealt with as an urgent one – even during the court recess
– and to condone the non-compliance with the
normal time
periods provided for in the Rules.
interim interdict
The applicant essentially seeks interim relief pending the
finalisation of the appeal against my judgment of 7 December 2010.
I
will therefore consider the factors to be taken into account in
matters of this nature, as set out in
LF Boshoff Investments
(Pty) Ltd v Cape Town Municipality
1
and numerous subsequent cases.
Prima facie
right?
The applicant seeks to stay the disciplinary inquiry. In his
previous urgent application, he sought to declare his suspension
unlawful; and to set it aside. It is not clear to me how his pending
application for leave to appeal against that judgment has
any effect
on the disciplinary inquiry scheduled for tomorrow. Should he
succeed in the current application, the municipality
will be
precluded from holding a disciplinary inquiry pending the
“finalisation” of the appeal process. The applicant
has
not sought to bring an urgent appeal. In the normal course, it may
take a year or two before the appeal – if any –
is heard
by the Labour Appeal Court.
I say “if any” because I have not yet applied my mind to
the question whether leave to appeal should be granted.
I can only
do so once the transcript of that judgment is available.
But in any event, even if the applicant were to be granted leave to
appeal against that judgment, and even if the appeal were
to be
successful, that would not preclude the municipality from proceeding
with a properly constituted disciplinary inquiry.
The disciplinary inquiry scheduled for tomorrow was convened by the
acting municipal manager, LJ Sebola, in accordance with a
council
resolution. The applicant, in his previous application, contested
the legal authority of the second respondent, SW Kekana.
Even if the
applicant were to be successful on that leg of the appeal, it would
have no influence on the authority of Sebola
and the municipality to
proceed with the disciplinary inquiry. And Sebola has not been
joined to these proceedings.
The applicant has no
prima facie
right not to be called
before a disciplinary hearing. And, as I have set out above, there
is no legal
nexus
between the application for leave to appeal
under case number J 2441/2010 and the present application.
In any event, the delivery of an application for leave to appeal
does not automatically suspend the operation of a judgment.
Appeals
to the Labour Appeal Court are governed by s 166 of the Labour
Relations Act
2
,
rule 30 of the Rules for the Conduct of Proceedings in the Labour
Court and rule 5 of the Rules for the Conduct of Proceedings
in the
Labour Appeal Court. As this court noted in
NAPOSU v National
Commissioner of the National Police Services & others
,
3
the Act is silent on the effect of noting an appeal save that
section 166(3) provides that “leave to appeal may be granted
subject to any conditions that the court may determine”.
This is to be contrasted with the position in the High Court, where
rule 49(11) provides that an application for leave to appeal
suspends the operation of an order.
In the present case, if I should grant the relief sought, it would,
in effect, have the same effect of granting the applicant
the relief
he sought in December 2010 when I ruled against him. He then sought
a declaratory order that the municipal manager
did not have the
legal authority to institute disciplinary proceedings against him.
He now seeks to stay the disciplinary hearing
pending a decision on
appeal on that question. It is doubtful that such an appeal, if
granted, would be heard in less than a
year’s time. The
applicant is thus seeking substantially the same relief that I had
already refused in different terms.
This court, in the case of
NAPOSU
4
,
referred to an analogous situation that arose in
Constantinides
v Jockey Club of South Africa
5
.
In that case, after an application for leave to appeal had been
filed, Herbstein J noted:
“
On the
main application I held that the applicant made out no case for an
interdict. It seems to me that I would be stultifying
myself and
frustrating that judgment if I now held that the applicant is
entitled to an interim interdict pending the decision
on the appeal.”
I am faced with a similar situation in this case. I have already
ruled on the legality of the municipal manager’s actions.
If I
were to grant the relief sought, it would, in effect, nullify that
ruling. And in any event, the second respondent, Kekana
–
against whom the December relief was sought and who is cited in this
application as well – is not the person who
initiated the
disciplinary hearing scheduled for tomorrow. That was the acting
municipal manager, Sebalo, who is not a party
to this application.
The Labour Appeal Court has now put beyond dispute that this court
does have jurisdiction to interdict disciplinary proceedings.
6
But it will only do so if grave injustice might otherwise result. Is
this such a case? I think not, given my view on the further
requirements for an interim interdict, dealt with below.
Apprehension of irreparable harm
The applicant makes on bald averment in his founding affidavit, in
these words:
“
If the
order is not granted I will suffer irreparable harm in that the
disciplinary hearing will proceed and my right to have the
appeal
heard more especially with regard to the second respondent’s
legal authority to institute the same disciplinary hearing
will not
have been determined by a court of law”.
The applicant has not made out a case for the apprehension of
irreparable harm. Apart from the fact that he has no inherent “right
to have the appeal heard” – a question on which I have
yet to rule – any harm he might suffer as a result of
the
disciplinary inquiry is not irreparable.
The municipality has alleged that the applicant has committed some
26 serious instances of misconduct, including fraud and
contraventions of the Municipal Finance Management Act
7
.
The applicant has the opportunity to be heard and to counter these
allegations. He has even been granted the right to be legally
represented in that inquiry. He has not alleged any bias on the part
of the appointed chairperson, who is an advocate. There
can be no
harm in attending those proceedings and defending himself.
And even if the chairperson of the disciplinary inquiry were to find
against the applicant, and even if the applicant were to
be
dismissed, the clear harm to him is not irreparable. He can then
refer an unfair dismissal dispute to the South African Local
Government Bargaining Council and challenge his dismissal.
I am not satisfied that the applicant will suffer irreparable harm,
should the interdict not be granted.
Balance of convenience
The applicant makes out no case in his founding papers why the
balance of convenience should favour him. He baldly states: “It
is my respectful submission that the balance of convenience favors
[
sic
] the granting of the order as prayed on the notice of
motion to which this affidavit is attached.”
But in any event, the balance of convenience does not favour the
applicant. As I have stated above, at worst for him, if the
disciplinary inquiry were to be adverse to him, and even if he were
to be dismissed, he is not without a remedy. On the other
hand, if I
were to grant the relief sought, the municipality would be prevented
from investigating serious allegations of misconduct
involving
public money for a lengthy period of time. It would also have to
continue using public money to pay the applicant’s
substantial
salary until such time as a possible appeal may eventually be heard.
Moreover, as is standard in the public service, the applicant’s
contract of employment states that, if he is suspended
as a
precautionary measure, the employer must hold a disciplinary hearing
within 60 days of the date of suspension. That period
lapses on 23
January 2011. The municipality must start the hearing before that
date.
Adequate alternative remedy
The applicant has an adequate alternative remedy. Should the
findings of the disciplinary inquiry not be in his favour, and even
if he were to be dismissed, he can refer an unfair dismissal dispute
to the SALGBC. Should his complaint have merit, he could
be
reinstated retrospectively.
Costs
Both parties asked for costs on a punitive scale. I do not think
that a punitive costs order is warranted. But I can see no reason
in
law or fairness why I should not heed the parties’ request
that costs should follow the result.
order
The application is dismissed with costs, including the costs of
counsel.
_______________________
STEENKAMP J
Date of hearing:
19 January 2011
Date of judgment:
19 January 2011
For the applicant:
Attorney RK Mashego
For the respondents:
Adv J Nel
Instructed by: Mohale Inc.
1
1969
(2) SA 256
(C ) 267 A-F
2
Act
66 of 1995
3
[1999]
10 BLLR 1068
(LC)
4
Supra
para [16] – [18]
5
1954
(3) SA 35
(C).
6
Booysen
v Minister of Safety and Security
[2011]
1 BLLR 83 (LAC)
7
Act
56 of 2003