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[2011] ZALCJHB 227
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Ngele v Department of Water affairs (J1469/11) [2011] ZALCJHB 227 (2 August 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J1469/11
In the matter between:
NOBUBELE JULIAN NGELE
...................................................................................
Applicant
and
DEPARTMENT OF WATER AFFAIRS
................................................................
Respondent
JUDGMENT
FRANCIS J
1. On 28 July 2011 the applicant brought an urgent application which
she set down for a hearing on 29 July 2011 for the following
relief:
“
1. Dispensing with the forms and service
as prescribed by the Rules of the Labour Court and directing that
this application be heard
as one of urgency in terms of Rule 8;
2. Ordering that a rule nisi do issue, calling upon the respondent
to show cause on a date and time to be determined by the Registrar
or
so soon thereafter as counsel may be heard why the following order
should not be made final:
2.1 The suspension of the applicant on 20 July 2011 is unfair,
invalid and unlawful;
2.2 The respondent is directed to forthwith and immediately
withdraw the notice of suspension dated 20 July 2011;
3. The costs of the application shall be paid by the respondent;
4. Ordering that paragraph 2.2 hereof shall operate with
immediate effect as an interim interdict pending the return date;
5. Ordering that the return date of this order may be anticipated
by the respondent on 48 hours notice to the applicant;
6. ..................
7. Further and/or alternative relief.”
2. The application was served on the respondent on 27 July 2011 at
16h47. The respondent opposed the application and filed an
answering
affidavit on 28 July 2011. The applicant did not deem it necessary
to file a replying affidavit.
3. The applicant is employed by the respondent as the Deputy
Director General of Corporate Services on a fixed term contract
ending on 30 September 2015. Over the past year or two, Government,
and in particular the respondent, has been engaged in significant
efforts to address procurement irregularities by its officials. In
May 2010 the Auditor-General delivered a report into alleged
procurement irregularities at the respondent. Action was taken
following the report, with further investigation conducted and
disciplinary action taken against various officials of the
respondent.
4. Further to the Auditor-Genarl report, on or about 10 September
2010 the Public Service Commission (“the PSC”)
advised
the respondent that it had received a complaint on the National
Anti-Corruption Hotline implicating the Applicant in
irregular
procurement practices concentring the awarding of a contract to
Autopage. The PSC advised the respondent that it would
be
investigating the said complaint.
5. The respondent notified the applicant on or about 27 October 2010
that it considered suspending her following,
inter alia
, the
allegation of misconduct made against her on the National
Anti-Corruption Hotline. The applicant made representations why
she
should not be suspended. After considering her written
representations, the respondent suspended her on 1 November 2010.
In
the suspension letter the applicant was informed
inter alia
that “
the suspension will be with full emoluments until
such time that a chairperson of a disciplinary enquiry has arrived
at a decision
regarding your guilt or innocence with regard to the
allegations”.
6. At the commencement of the disciplinary hearing into certain of
the allegations of misconduct by the applicant, the respondent
had
not yet received the investigation report from the PSC that detailed
the alleged misconduct in relation to Autopage. The
respondent has
no control over the PSC and could not dictate the progress of such
an investigation. The respondent decided to
commence with the
disciplinary hearing after the applicant had insisted that the
hearing had to commence. The respondent would
have preferred to
await the report of the PSC on the Autopage allegation to enable it
to put that allegation of misconduct to
the applicant in the same
hearing. However, as the PSC had not concluded its investigation
into that aspect and the applicant
had demanded that her hearing
commence within the prescribed period, the respondent could not deal
with the Autopage at the same
hearing as the other five counts of
misconduct levelled against her. The respondent had in the
disciplinary notice specifically
reserved its right to later bring
allegations of misconduct against her concerning the Autopage
incident.
7. A charge contained in the suspension letter relates to the tender
processes followed in the awarding of a contract to Autopage.
This
charge was however not included in the disciplinary notice that she
was given. She was informed in the said disciplinary
notice about
the Autopage issue and that investigations were still being
investigated and that charges might ensue. She was informed
that the
respondent reserved the right to add any further charges emanating
from the investigations that were being conducted
by the respondent
into other areas of procurement including the abovementioned
investigation that was underway by the PSC. Some
charges were duly
added.
8. The applicant appeared at a disciplinary hearing. She was found
guilty of some of the charges. The chairperson of the disciplinary
enquiry found that an appropriate sanction was a final written
warning. He found that she had to return to her job and position
with restoration of all of the employment benefits and other
entitlements that she enjoyed before her suspension and had to
report for duty on 12 July 2011.
9. The respondent received the provisional report from the PSC
concerning the Autopage allegations on 19 July 2011, the same
day
that the applicant reported for duty. She could not report for work
earlier and did so on 19 July 2011. On 20 July 2011 the
respondent
informed her in writing that her continued suspension relating to
the Autopage allegation continued. She was instructed
to vacate her
office with immediate effect pending further notice. The applicant’s
attorney on 22 July 2011 wrote to the
respondent about her further
suspension from employment with effect from 20 July 2011. It was
pointed out that the suspension
was unfair, invalid and unlawful and
the respondent was requested to immediately withdraw the letter
dated 20 July 2011 and to
allow her to resume her duties with the
respondent in line with the chairperson’s ruling dated 4 July
2011 failing which
she would approach this Court for urgent relief
with an appropriate cost order against the respondent. The
respondent’s
attorney on 26 July 2011 wrote to the applicant’s
attorney stating that the respondent intended serving the applicant
with
a notice to attend a disciplinary enquiry into allegations of
misconduct to take place during the next week, i.e. 1 - 5 August
2011. It advised that it would not deal with the allegations
contained in the applicant’s letter of 22 July 2011.
10. The applicant contended that since the respondent had refused to
withdraw the suspension, she had no option to approach this
Court
for urgent relief.
11. The applicant contends that the application is urgent for the
following reasons:
“
70. As stated above, the disciplinary
proceedings against me were concluded on 8 July 2011.
71. Notwithstanding the lengthy proceedings and the outcome of
that process, the respondent has sought to suspend me yet again on
a
spurious, unfounded and illegitimate basis.
72. Despite my request that the respondent withdraw the notice of
my further suspension from employment with the Department, it
has
threatened the launch of further disciplinary proceedings in an
effort to undermine my efforts to challenge my subsequent
suspension. In the circumstances, I have no other option but to
launch this application and to seek appropriate assistance form
this
Court.
73. Having regard to the circumstances of this matter, it will be
submitted on my behalf that I have acted expeditiously in bringing
this application”.
12. The applicant was opposed by the respondent on the following
grounds:
12.1 The applicant was not suspended for a second time on 20 July
2011,but instead the respondent continued to enforce her suspension
which was effected in 1 November 2010;
12.2 There was no reason or requirement for the respondent to again
afford her the opportunity to be heard before continuing
the
suspension;
12.3 The suspension was effected for valid reasons and following
adherence to a fair procedure and is therefore valid and lawful;
12.4 There is no urgency requiring intervention by this Court in the
light of the imminent hearing that will take place into
the
allegations of misconduct levelled against the applicant. In any
event there was no reason for the applicant to launch this
application on less than 48 hours notice, as she has done;
12.5 The applicant has an alternative remedy that she could use
should she wish to challenge the fairness of her suspension;
12.6 There is no irreparable harm faced by the applicant that
warrants the granting of an order interdicting the respondent from
continuing the suspension of the applicant in the light of the facts
of the suspension; and
12.7 The balance of convenience favours the respondent because the
applicant faces disciplinary action for not only failing to
comply
with the requisite supply chain management procedures, but also
failed to disclose when making representation on her suspension
that
she had in fact, signed an airtime agreement with Autopage and had
not instead, only signed the approval for such an agreement
and the
hearing is set to take place on 17 August before advocate John
Myburgh SC, a date on which the applicant’s attorney
of record
confirmed her availability to attend to the hearing.
13. The applicant has brought this application on an urgent basis.
Since the applicant is seeking urgent relief, the application
must
comply with the provisions of rule 8 of the Rules of this Court. The
founding affidavit must contain the reasons for urgency
and why
urgent relief is necessary and the reasons why the requirements of
the rules were not complied with. It must also provide
reasons why a
shorter period than that provided for in terms of section 68(2) of
the Act why a shorter period should be permitted.
14. The grounds of urgency contained in paragraphs 70 to 74 of the
applicant’s founding affidavit can hardly be called
grounds of
urgency. Before the applicant was suspended on 1 November 2010 she
was allowed to make representations around the
Autopage incident.
She was informed that those investigations were not concluded at the
time when the disciplinary proceedings
were instituted against her.
She was suspended on 1 November 2000 but decided not to challenge
her suspension. She endured her
suspension for a period of nine
months. The respondent has now received a report from the PSC and
has decided to charge the applicant
with the misconduct. Her
disciplinary hearing is scheduled to take place on 17 August 2011.
It is unclear why the application
has now become so urgent that it
should be heard now. No explanation was tendered why a further three
weeks before the disciplinary
hearing would tarnish her reputation.
15. The applicant has dealt with the requirements for urgent relief
in the founding affidavit. The first is that she has a prima
facie
right. She proceeded to deal with the requirements of a “well
grounded apprehension of irreparable harm”. She
stated
inter
alia
that “
after the outcome of the disciplinary
proceedings, both my professional and personal reputation was
restored, and I was willing
to render my services to the Department
with the same enthusiasm and commitment with which I had previously
rendered my services.
The impact of a further period of suspension
is arguable even more harmful to my reputation and integrity than
the first suspension
because it creates the impression that I am
incapable of rendering my services to the Department as a senior
manager and that
despite the outcome of the disciplinary
proceedings, I may be guilty of serious acts of misconduct. Given
the impact of such
action on my personal and professional
reputation, I continue to suffer irreparable harm and will continue
to do so if interim
urgent relief in this application is not
granted. The respondent has had the opportunity to test my innocence
or guilt in a process
that commenced in November 2010 and was
concluded some 8 months later in July 2011
.”
16. I have already pointed out that the grounds of urgency advanced
by the applicant in her founding affidavit are hardly grounds
of
urgency. Those contained under the heading “well grounded
apprehension of irreparable harm” deal with the requirements
for interim relief. Even if they could be construed as dealing with
urgency, the facts in this case are not exceptional circumstances
that would prompt this court to come to the applicant’s
assistance on an urgent basis. In
Zwakala v Port St John’s
Municipality & Others
[2000] 1 BLLR 117
(LC) the Court held
at page 118 as follows:
“
The only grounds of urgency advanced by
the applicant in his founding affidavit relate to humiliation
suffered by him by reason
of the suspension and the tarnishing of
his name which it implies.
The difficulty I have is that almost every suspension by reason
of the investigation of allegations of misconduct would cause this
type of prejudice. This does not make the matter urgent in the sense
described above. Furthermore, urgency can surely not be
created by
“rumour mongering” and “unfounded allegations of
embezzlement”. Right thinking inhabitants
of Port St Johns
must know, or ought to know, that a suspension pending further
investigations is nothing more than that. Such
further
investigations may establish impropriety on the applicant’s
part. On the other hand they may not”.
17. There are no exceptional circumstances set out in this
application why the court should deal with this matter on an urgent
basis. In this regard see
Mosiane v Tlokwe City Council
[2009] 8 BLLR 771
(LC),
Jiba v Minister of Justice and
Constitutional Development
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC). The
applicant has brought this upon herself. I have pointed out that she
did not deem it necessary to file a replying affidavit.
The
respondent stated that it has no control over the PSC and that it
was waiting for their report to be completed before deciding
whether
to charge her or not. It had requested that the disciplinary
proceedings be held over until those investigations were
concluded
before she was charged. She refused and insisted that the
disciplinary proceedings go on. When she was charged, she
was
informed by the respondent that it reserved the charge her with the
Autopage allegation. She knew that those charges were
still pending
against her.
18. The application stands to be struck from the roll.
19. Since the parties have an ongoing relationship I do not believe
that this is a matter where costs should follow the result.
20. In the circumstances I make the following order:
20.1 The application is struck from the roll.
20.2 There is no order as to costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANT : H VAN DER RIET SC INSTRUCTED BY CHEADLE THOMPSON &
HAYSOM INC
FOR RESPONDENT : M VAN AS INSTRUCTED BY STATE ATTORNEY
DATE OF HEARING : 29 JULY 2011
DATE OF JUDGMENT : 02 AUGUST 2011