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[2011] ZALCJHB 223
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Greater Taung Local Municipality v Bloem (J840/11) [2011] ZALCJHB 223 (24 June 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Not Reportable
Case no
:
J840/11
In the matter between:
GREATER TAUNG LOCAL MUNICIPALITY
..........................................................
Applicant
and
THUSO BLOEM
.................................................................................................
Respondent
Date of Hearing:
Date of Judgment: 24 June 2011
DECISION
VAN VOORE AJ
On 24 June 2011, I handed down an order that the rule
nisi
be discharged and that there is no order as to costs. I
have been asked to give reasons for that decision. Those reasons are
set out below.
On 24 June 2011, the Greater Taung Local Municipality
(the Municipality) applied for an order confirming the rule
nisi
issued on 20 May 2011. The Municipality in effect sought final
relief against the Respondent (Bloem). The Municipality had earlier
approached the Labour Court on an urgent basis seeking relief
including an order that Thuso Bloem (Bloem) vacates the
Municipality’s
premises, that should he refuse to do so, that
the Sheriff of the High Court and / or members of the South African
Police Services
(the SAPS) are authorised to remove him from the
Municipality’s premises, that he is ordered to vacate the
premises pending
finalisation of investigations against him or until
his suspension is revoked by the Municipality or is declared invalid
by a
competent forum, that his interdicted from acting in any manner
contrary to the terms of the letter of suspension, more
particularly,
from entering the Municipality’s premises except
to the prior consent of the Municipality’s municipal manager
or
a person so delegated and authorised by the Municipality’s
municipal manager.
The founding affidavit in the application for interim
relief was deposed to by Mpho Simon Mofokeng (Mofokeng). Bloem is an
employee
of the Municipality. It was alleged against Bloem that:
”
there are
allegations that [he has] committed act/s of misconduct and / or
conducted himself in a manner that he is in breached
of the
Municipality policies and legislation.”
The notice of suspension specifically records that it
is alleged against Bloem that he abused a municipal vehicle and
absented
himself from duty without leave or permission and
‘campaigned’ during working hours, that he was in
unauthorised
possession of the Municipality’s property and
caused malicious damage to the municipality’s property, that
he was
in possession of a stolen municipal computer and information
which was obtained illegally, that he (individually or with others)
participated in conduct which had the effect of disrupting the
operations of the Municipality and that he wrongfully disclosed
privileged information.
The papers do not describe the documents and
information allegedly stolen from the Municipality and do not give
proper and full
details about those documents and information. In
relation to the suspension, the notice of suspension records that
‘your
suspension is based on the reasons that if you are at
the work premises, you may [tamper] with the investigations as well
as
witnesses.’ No factual basis is offered for this view. The
Municipality does not inform the Court when it commenced
investigations
or who on behalf of the Municipality is conducting
those investigations and what the investigations will entail. The
claim as
to alleged interference with the investigation and
witnesses is unsupported by facts and are no more than claims in the
air.
To my mind, this does compromise the application for
confirmation of the Rule.
An employer who is investing allegations of misconduct
against an employee has a range of adequate alternative remedies
available
to it should the employee refuse to abide the terms of a
proper suspension. Those remedies include taking proper and timeous
steps to deny the employee against whom serious allegations of
misconduct have been made from accessing the premises of the
employer
without the employer’s consent. These issues are not
canvassed, whether properly or at all, on the papers before this
Court.
It is not alleged that the Municipality took such steps and
that those responsible for preventing Bloem from gaining access to
the premises have informed the Municipality that, notwithstanding
their best efforts, Bloem has accessed the premises without
consent.
Since the date of the Rule
nisi
there was sufficient
opportunity to supplement the papers. The papers have not been
supplemented and accordingly the matter must
be determined on the
papers as they stand.
Final interdictory relief is a drastic step and should
not be granted lightly. An applicant for such relief is required to
set
out a proper factual basis. In this matter, no proper case has
been made for final relief and the Rule
nisi
falls to be
discharged.
I should add that I have concerns as to the Labour
Court having jurisdiction to intervene in a dispute such as the
present. If
the central issue is effectively one of trespass then
the Municipality has other alternative remedies available to it.
V
an Voore AJ
Appearances;
For the Applicant:
For the Respondent: