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[2011] ZALCJHB 276
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Mpati v Premier of Free State Provincial Government and Others (J593/2011) [2011] ZALCJHB 276 (11 May 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Not
reportable
Case
No: J593/2011
In
the matter between:
MAPOULO
SIMON MPATI
A
pplicant
and
THE
PREMIER OF FREE STATE
PROVINCIAL
GOVERNMENT
1
st
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL,
FREE
STATE DEPARTMENT OF POLICE,
ROADS
AND
TRANSPORT
2
nd
Respondent
ACTING
HEAD OF DEPARTMENT OF
POLICE,
ROADS AND TRANSPORT:
FREE
STATE
PROVINCE
3
rd
Respondent
ISAAC
JABULANI GEORGE MAKAUKAU
4
th
Respondent
JUDGMENT
GUSH,
J:
[1]
This is an application, brought urgently, by the applicant for an
order in the following terms:
1.1.
Declaring that the suspension dated 29/10/2010 sanctioned by
the third respondent was no longer valid.
1.2.
ordering the second respondent to permit the applicant to resume
duties as Acting Chief Director, Department
of Police, Roads and
Transport within (10) working days from the date of this order.
1.3.
Declaring that the provisions of clause 2.7 (3) has expired and the
second respondent has abandoned the one
thousand two hundred and
thirty six (1236) charges dated 28/01/2011 leveled against the
applicant.
[2]
The applicant seeks final relief.
[3]
The applicant was appointed to the position of Director: Roads
Construction and Maintenance on 15 February 2010 and was subsequently
deployed in the position of acting chief director, the position he
held at the time of his suspension.
[4]
The applicant avers in his founding affidavit that the disciplinary
code (or “code of good practice”) applicable
to employees
of the rank he occupies is contained in the Senior Management Service
(SMS) Handbook.
[5]
The applicant has referred to and quoted the following excerpts from
the SMS handbook in his founding affidavit:
If the alleged misconduct
justifies a more serious form of the disciplinary action that
provided for in paragraph 2.5 the employer
may initiate a
disciplinary enquiry. The employer must appoint a person from within
or from outside the public service as its representative
to initiate
the enquiry. Para 2.6(1);
If a member is suspended
and transferred as a precautionary measure, the employer must hold a
disciplinary hearing within sixty
(60) days. The chair of hearing
must then decide any further postponement. Para 2.7(2)(c);
If the member fails to
attend the hearing the chairperson concludes that the member did not
have a valid reason, the hearing may
continue in the member’s
absence. Para 2.7(3)(f)
[1]
[6]
The applicant was suspended on 29 October 2010 and was given a notice
to attend a disciplinary hearing on 22 December 2010.
He was also
served with a preliminary charge sheet. The applicant did not
challenge his suspension at the time and it is
common cause that the
enquiry did commence within the stipulated period.
[7]
The hearing was postponed on 22 December 2010 and after a number of
postponements was postponed to 11 April 2011. There is some
dispute
over the exact basis upon which the matter was to proceed on 11 April
2011. Suffice to say that on 8 April 2011 the applicant
was advised
that the enquiry would not be proceeding on 11 April 2011 and that a
revised charge sheet was to be prepared.
[8]
As a consequence, the applicant launched this application on 12 April
2011 to be considered as a matter of urgency.
[9]
Apart from
having to satisfy the court that the matter is urgent, in order for
the applicant to be granted the final order
he seeks, it is incumbent
upon the applicant to establish “a clear right to the relief
sought; an injury actually committed
or reasonably apprehended; and
the absence of similar or adequate protection by any other ordinary
remedy”.
[2]
[10]
The respondents in their answering affidavit take issue with the
applicant’s averment that the matter is urgent as well
as
challenging the applicant’s averment that he has a clear right
to the relief.
[11]
As regards the absence of a similar or adequate alternative remedy,
the respondents aver that as they have not infringed on
the
applicant’s rights, the question of an alternative remedy does
not arise.
[12]The
applicant seeks specifically to have his suspension declared no
longer valid and that the respondents be ordered to permit
him to
resume his duties.
[13]
The basis
upon which the applicant avers that he has a
prima
facie
right to the relief he seeks, is that he is entitled to enforce his
contract of employment in that it confers upon him the “right
to render a service to the respondents and the community” and a
“right to fair labour practice”. (sic)
[3]
As the nature of the relief that the applicant seeks is final, the
applicant is required to establish a clear right.
[14]
In so far
as the applicant may have established a clear right, it is a right to
fair “labour practice”(sic) in respect
of his suspension.
The provisions of s 186(2)(b) of the Labour Relations Act (ACT)
[4]
specifically afford the applicant an alternative remedy that is
“adequate in the circumstances; ordinary and reasonable;
[and
is a] legal remedy and which grants the applicant similar
protection.”
[5]
[15]
It is common cause that the applicant has not referred a dispute
regarding his suspension to the Bargaining Council or CCMA
in
accordance with the ACT. The applicant does not address this issue
and offers no explanation why he has not availed himself
of the
alternative remedy provided for in s186(2)(b) of the ACT.
[16]
As for the
relief the applicants seeks in the form of an order that the second
respondent has abandoned the charges against the
applicant, the
applicant specifically states in his affidavit that he is uncertain
when the matter is to proceed and how long it
will take to
finalise.
[6]
This certainly does
not convey that the applicant believes that the respondents have
abandoned the disciplinary enquiry. In reply,
the respondents have
filed a detailed affidavit explaining the reason for the delays and
setting out very clearly that they have
not abandoned their intention
to proceed with the disciplinary hearing.
[17]
In so far as the relief sought relies on a failure by the respondents
to comply with the provisions of the SMS Handbook, it
is so that the
chairperson appointed to deal with the enquiry is seized of the
matter and it is common cause that the applicant
has not approached
the appointed chairperson to address his concerns. The enquiry
commenced on 22 December 2010 and the appropriate
manner to deal with
this issue is for the applicant to approach the duly appointed
chairperson of the enquiry. There is no reason
for the court to
interfere in the disciplinary process at this stage.
[18]
On these grounds alone the application should be dismissed.
[19]
The major hurdle however that the applicant fails to surmount is that
of urgency. It is appropriate to record in its entirety
the
applicants reason for arguing that the matter is urgent:
The
matter is urgent in that the applicant and the second respondent have
a valid contract of employment and the said contract still
subsist
and it is clear from the above background that representatives of the
second respondent of failing to prosecute the charges
against the
applicant and the period of the prosecution has the matter is not yet
finalised and suspension is still in force and
there is no dates set
for the conclusion of the matter. In actual fact, the hearing has not
yet commenced and that is not as a
result of the conduct of the
applicant.
[7]
[20]
I am not satisfied that this any way whatsoever justifies the matter
being brought as a matter of urgency. The suspension was
brought into
effect on 29 October 2010 and was not challenged. The applicant has
had ample opportunity to avail himself of the
alternatives at his
disposal and has not done so. He has offered no explanation other
than that set out above why the application
should be heard as a
matter of urgency.
[21]
The parties agreed that costs should follow the result and I see no
reason why this should not be so.
[22]
Whilst the absence of urgency would ordinarily result in the
application being struck off the roll, the merits of the applicant’s
application justify it being dismissed. In the circumstances and for
the reasons set out above I make the following order:
22.1.
The applicant’s application is dismissed
with costs.
_______________
GUSH
J
Date
of Hearing
: 4
May
2011
Date
of Judgment :
11 May 2011
Appearances
For
the Applicant :
Adv K S Tip
SC with him Adv Habedi
Instructed
by :
Minnaar Niehaus Attorneys
For
the Respondent:
Adv O C Mabaso
Instructed
by :
Mateme Makgahlele Attorneys
[1]
Founding affidavit para 7.
[2]
Herbstein and van Winsen:
The
Civil Practice of the High Courts of South Africa
5
th
ed volume 2 at 1456.
[3]
Founding affidavit para 9.
[4]
Act 66 of 1995. This section defines an unfair labour practice as
including unfair suspension of an employee.
[5]
Herbstein and van Winsen above n 2 at 1468-9
[6]
Founding affidavit para 10.
[7]
Founding affidavit para 8.