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[2011] ZALCJHB 248
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Lebu v Maquassie Hills Local Municipality and Others (J 2695/11) [2011] ZALCJHB 248; (2012) 33 ILJ 2623 (LC) (7 December 2011)
Reportable
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case
no: J 2695/11
In the matter between:
RALEKGETHO
LEBU
.............................................................................
APPLICANT
and
MAQUASSI
HILLS LOCAL MUNICIPALITY
...............................
1
ST
RESPONDENT
M. MAPHOLI N.O. 2
ND
RESPONDENT
(ACTING MUNICIPAL
MANAGER)
D. K.
MOHADI 3
RD
RESPONDENT
G. V.
KGABI 4
TH
RESPONDENT
M.D.
MATETE 5
TH
RESPONDENT
T.S.
SELETE 6
TH
RESPONDENT
K. G.
MOJELA 7
TH
RESPONDENT
M. S.
SEJESO 8
TH
RESPONDENT
K. S.
KGAODI 9
TH
RESPONDENT
K.A.
MOGAPI 10
TH
RESPONDENT
O. H.
BATSIETSING 11
TH
RESPONDENT
G. P.
MOTSWAKGOLE 12
TH
RESPONDENT
S. J.
LESIE 13
TH
RESPONDENT
N. W.
NTIANE 14
TH
RESPONDENT
M.D.
SERECTSI 15
TH
RESPONDENT
J.
PHEIFFER 16
TH
RESPONDENT
G.J.
VAN ZYL 17
TH
RESPONDENT
N.L.
TSHINGILANE 18
TH
RESPONDENT
M.E.
MOTAUNG 19
TH
RESPONDENT
B.J.MAHUMAPELO
20
TH
RESPONDENT
O.S.
DUFFY 21
ST
RESPONDENT
Heard
: 2 December 2011
Delivered
: 7 December 2011
Summary:
Suspension of senior manager contrary to Local
Government Disciplinary Regulations for Senior Managers, 2010.
Suspension unlawful
on account of failure to afford manager seven
days’ notice of justification for suspension.
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an urgent application in which the applicant, the
municipal manager of the first respondent (the municipality), seeks
to have his suspension set aside. Although the applicant initially
sought an interim order, the parties agreed that all of the
relevant
factual and legal issues raised had been fully canvassed, and that
should the application be successful, a final order
should be
granted.
[2] The urgency of the application was not contested, and I deal with
it on that basis.
[3] The question that is to be decided is whether the applicant’s
suspension should be set aside on the basis that the municipality
failed to comply with the provisions of the Local Government:
Disciplinary Regulations for Senior Managers 2010, and the
applicant’s
contract of employment. In particular, the issue
raised by this application is whether the applicant’s
suspension is unlawful
because the municipality, in breach of
regulation 6 of the regulations referred to, failed to invite the
applicant to make representations
within a seven day period as to the
purpose of the suspension before the municipality took a decision
that he be suspended.
Background
[4] I do not intend to burden this judgment with a recitation of all
of the facts. This matter has a sorry history. In December
2010 this
court set aside the applicant’s suspension in terms of an order
granted under case number J 2455/10. On 21 October
2011 this court
(per Steenkamp J) delivered a judgment in terms of which the
applicant’s suspension was declared unlawful
and set aside, and
the municipality ordered to reinstate the applicant. The municipality
filed an application for leave to appeal
against the judgment. The
application was withdrawn on 26 October 2011 when the parties reached
an agreement to the effect that
the municipality would withdraw its
application for leave to appeal and that the applicant would take
special leave until 21 November
2011. The agreement provided further
that the applicant would be reinstated and resume his duties on 22
November 2011, subject
to the court’s determination of yet
another application, in this instance an application brought under
case number J 2065/11
for a declaratory order to the effect that the
applicant’s contract remained in force until 31 October 2012.
On 27 October
2011, Francis J made the agreement an order of court.
On 31 October 2011, Basson J issued a rule
nisi
calling on the
municipality to show cause on 18 November 2011 why a final order
should not be granted declaring that the applicant’s
contract
terminated on 31 October 2012, and restraining the municipality from
terminating the contract for any reason that was
not lawful and fair.
On 14 November 2011, the municipality resolved to withdraw its
opposition to the application for the declaratory
order, and later
filed a notice to that effect.
[5] On the same date, 14 November, at approximately 21h00, the
municipality delivered a letter to the applicant advising him of
the
withdrawal of opposition to his claim, but also notifying him of the
municipality’s intention to suspend him. The relevant
portion
of the letter reads as follows:
“
Council
resolved today (14 November 2011) not to challenge your view that
your contract of employment is still valid until 31 October
2012 and
has rescind its previous resolution to the opposite effect.
Our legal representative was
instructed to no longer pursue or oppose any application in the
labour court which challenges the validity
and lawfulness of your
contract of employment.
Council however has reasonable
cause to believe that acts of misconduct has been committed by you as
Accounting Officer as resolved
to institute disciplinary proceedings.
A report which includes reference to various alleged acts of
financial misconduct and other
transgressions was tabled to council.
The alleged acts of misconduct are of a very serious nature and
Council is therefore considering
suspending you.
[The letter then sets out
various allegations of misconduct]
You are given an opportunity in
terms of Local Government Notice No. 344 [Local Government
Disciplinary Regulations for Senior Managers,
2010] to make within
seven [7] days written presentation to the municipal council why you
should not be suspended. These submissions
must reach council on or
before 21 November 2011. 16h30’ (sic).
[6] On 21 November 2011, the applicant’s attorney responded to
the letter, in essence contending that the municipality had
an
ulterior motive in effecting the suspension and that the letter
failed to set out any purpose for the suspension, and advising
the
municipality that the applicant did not intend at that stage to
respond to the allegations of misconduct.
[7] On the same date, 21 November, the municipality’s attorney
telephoned the applicant’s attorney and advised him
that the
council had resolved to suspend the applicant with immediate effect,
and that the applicant was not to report for duty
on 22 November
2011.
[8] On 22 November 2011, the municiplaity addressed a letter to the
applicant, which reads as follows:
‘
Disciplinary
Enquiry: Suspension- Municipal Manager
We acknowledge receipt of your
legal representative’s letter dated 21 November 2011 informing
council that you do not wish
to make written presentation to the
municipal council why you should not be suspended.
It is with regret that we wish
to advise you that Council Resolved on 21 November 2011 to suspend
you with immediate effect with
full benefits in terms of Local
Government Notice No. 344 (Local Government: Disciplinary Regulations
for Senior Managers, 2010)
from performing your duties pending the
outcome of a disciplinary enquiry as council has reasonable cause to
believe that acts
of misconduct has been committed by you as
Accounting Officer and resolved to institute disciplinary
proceedings.
Council is of the view that your
presence may-
Be detrimental to stability in
the municipality
Interfere with potential
witnesses
Conduct further acts of
misconduct
Place the property of council
at risk...’
[9] After receipt of the letter, the applicant instructed his
attorney to initiate these proceedings.
The applicable legal principles
[10] The applicant contends that his suspension is unlawful for want
of compliance with the Local Government: Disciplinary Regulations
for
Senior Managers 2010, and the applicant’s contract of
employment. It is not disputed that the applicant falls within
the
definition of ‘senior manager’ for the purposes of the
regulations.
[11] The process for a precautionary suspension is dealt with
specifically in regulation 6. The regulation reads as follows:
“
6. Precautionary
suspension
.—(1) The
municipal council may suspend a senior manager on full pay if it is
alleged that the senior manager has
committed an act of misconduct,
where the municipal council has reason to believe that—
(a) the presence of the senior
manager at the workplace may—
(i) jeopardise any investigation
into the alleged misconduct;
(ii) endanger the well-being or
safety of any person or municipal property; or
(iii) be detrimental to
stability in the municipality; or
(b) the senior manager may—
(i) interfere with potential
witnesses; or
(ii) commit further acts of
misconduct.
(2) Before a senior
manager may be suspended, he or she must be given an opportunity to
make a written representation
to the municipal council why he or she
should not be suspended, within seven (7) days of being notified of
the council’s
decision to suspend him or her.
(3) The municipal
council must consider any representation submitted to it by the
senior manager within seven (7) days.
(4) After having
considered the matters set out in sub-regulation (1), as well as the
senior manager’s representations
contemplated in sub-regulation
(2), the municipal council may suspend the senior manager concerned.
(5) The municipal
council must inform—
(a) the senior manager in
writing of the reasons for his or her suspension on or before the
date on which the senior manager is
suspended; and
(b) the Minister and the MEC
responsible for local government in the province where such
suspension has taken place, must be notified
in writing of such
suspension and the reasons for such within a period of seven (7) days
after such suspension.
(6) (a) If
a senior manager is suspended, a disciplinary hearing must commence
within three months after the
date of suspension, failing which the
suspension will automatically lapse.
(b) The period of
three months referred to in paragraph (a) may not be extended by
council.”
Analysis
[12] In the course of preparing this judgment, I have had the benefit
of reading two judgments by Steenkamp J, one of them the
judgment
delivered in respect of the dispute between the same parties and
referred to above (case number J 2455/11). Both judgments
concern the
interpretation and application of regulation 6. In
Biyase v
Sisonke District Municipality & others
1
Steenkamp J observed:
‘
[13]
The sub-regulation appears to contain an inherent contradiction: The
council must give the manager an opportunity to make representations
before
he or she is suspended; but must do so within seven days of the
council’s
decision
to suspend
him or her.
[14] How can the council give
the manager an opportunity to make representations before deciding to
suspend him if the decision
to suspend has already been taken?
[15] In order to make sense of
this provision, one has to give meaning to the clause “within
seven days of being notified
of the council’s decision to
suspend him or her.”
[16] In
Nell v Mulbarton
Gardens (Pty) Ltd
the phrase “within seven days of the
posting of a written notice” was construed to mean “within
seven days after
the posting of a written notice”, and the
first day was excluded. That seems like an obvious and sensible
interpretation.
[17] If the provision to make
representations before suspension is to have any meaning, it must
mean that the manager must have
a period of seven days within which
to make representations
before
a final decision to suspend is
taken.’
[13] In the present instance, it is not disputed that the applicant
received notice of the nature of the misconduct that he is
alleged to
have committed and that he was afforded seven days within to make
representations in relation to those allegations.
That notice is
contained in the letter dated 14 November 2011. What is at issue, as
I have indicated, is whether the municipality
was obliged, in terms
of regulation 6, to provide a justification for the applicant’s
suspension and to afford the applicant
seven days within which to
make representations regarding that justification before making any
decision to suspend him. In his
judgment delivered on 21 November
2011,
2
Steenkamp J said the following:
‘
[32]
Similarly, in terms of regulation 6(1), it is not sufficient for the
Council to allege that the senior manager has committed
an act of
misconduct in order to suspend him; it must also have reason to
believe that his presence may jeopardise the investigation,
endanger
the well-being or safety of any person or municipal property, or be
detrimental to stability in the Municipality; or that
he may
interfere with potential witnesses or commit further acts of
misconduct.
[33] In argument, Mr Loyson, for
the respondent submitted that it is clear from the facts of this
case, as set out in the answering
papers that the applicant in his
position as municipal manager and accounting officer could interfere
with the investigation and
has in fact committed acts of misconduct.
The problem is that none of this was alleged
before
he was
suspended, as required by regulation 6 and the contract of
employment. Therefore, the applicant was not given an opportunity
to
make representations why he should not be suspended, based on those
reasons.’
[14] Mr Louw, who appeared for certain of the respondents, and
despite the municipality’s withdrawal of its application for
leave to appeal against the judgment, invited me to decline to follow
Steenkamp J, at least in so far as his judgment suggests
that a
senior employee is to be afforded at least seven days to make
representations on both the misconduct alleged and the purpose
of the
suspension, before any decision to that effect is made final. I must
decline to accept that invitation. In my view, Steenkamp
J’s
interpretation of regulation 6 is correct. It is consistent with the
principle of
audi alteram partem
that the regulation clearly
seeks to meet, and with the chronology set out in the regulation. The
terms of the regulation clearly
contemplate an in-principle decision
to suspend, taken on the basis of a reasonable belief that the senior
manager has committed
misconduct and that at least one of the
requirements in paragraphs (a) and (b) is present. The municipality
is then required to
consider the matters set out in sub-regulation
(1) together with any representations received, and then and only
then, may the
municipality suspend the employee. I would add that in
my view, it is not sufficient for a municipality merely simply to
reproduce
the justifications listed in paragraphs (a) and (b). In the
present instance, that is what the applicant has done, with the
omission
only of the factor listed in paragraph (a) (i) on the basis,
presumably, that the investigation initiated into the applicant’s
conduct has been completed. Suspension is a measure that has serious
consequences for an employee, and is not a measure that should
be
resorted to lightly. There appears to be a tendency, especially in
the public sector, where suspension is applied as a measure
of first
resort and almost automatically imposed where any form of misconduct
is alleged. The purpose of removing an employee from
the workplace,
even temporarily and on full pay, must be rational and reasonable,
and must be conveyed to the employee concerned
in sufficient detail
to enable the employee to compile the representations that he or she
is invited to make in a meaningful way.
Of course there are those
instances where precautionary suspension is a necessary measure, and
where the reasons to remove an employee
from the workplace as a
precautionary measure are compelling. But those cases will be the
exception rather than the norm.
[15] To the extent that this application is predicated on the terms
of the applicant’s contract of employment, I agree with
the
conclusion reached by Steenkamp J that the applicant’s contract
ought to be read subject to regulation 6.
[16] The procedure relevant to the suspension of a senior manager in
terms of regulation 6 can be summarised as follows:
A municipality is entitled to suspend a senior manager on full pay,
if it reasonably believes that a senior manager has committed
an act
of serious misconduct.
The municipality must have reason to believe that the continued
presence of the senior manager at the workplace will either
jeopardise any investigation into the alleged misconduct, or
endanger the well being or safety of any person or municipal
property.
It will also be sufficient that the municipality believes
that the manager’s continued presence in the workplace will be
detrimental to stability in the municipality, or that the manager
may interfere with potential witnesses, or commit further acts
of
misconduct. The purpose of any suspension must be rational, and a
municipality must be in a position to establish the reasonableness
of its belief.
A municipality may do no more than take a decision in principle,
before affording the affected senior manager at least seven
days’
notice of its intention to suspend him or her. The notice must
contain at least a description of the misconduct that
the manager is
alleged to have committed, and the council’s justification for
its in-principle decision, and invite representations
in relation to
both. Both the nature of the misconduct alleged and the purpose of
the proposed suspension must be set out in
terms that are
sufficiently particular so as to enable the senior manager to make
meaningful representations in response to the
proposed suspension.
The council is required seriously to consider any representations
made by the affected senior manager. It must take those
representations
seriously and make a decision, in the light of those
representations and its own interests as defined by sub-regulation 6
(1),
on whether the manager should be suspended. It follows that if
the senior manager’s representations are rejected, the reasons
for that rejection ought to be furnished.
[17] In the present instance, the municipality notified the applicant
of its justification for his suspension on the same day that
he was
suspended. The municipality also failed to articulate the purpose of
the applicant’s suspension. In my view, therefore,
the
applicant’s suspension constituted a breach of regulation 6 and
he is entitled to the relief that he seeks.
[18] Finally, there is no reason why those respondents that opposed
these proceedings should not be liable for the applicant’s
costs. The municipality was advised on 14 November 2011 that it had
failed to state the purpose of the applicant’s suspension,
but
it persisted nonetheless. There is also a sense in which the temporal
coincidences relevant to the municipalities decision-making
suggest
that the municipality has conducted itself in Machiavellian fashion,
concluding settlement agreements on a return to work
and withdrawing
its opposition to the litigation initiated by the applicant, all the
while remaining intent on removing him from
the workplace. My only
regret is that the costs order that I intend to make will be met
ultimately, no doubt, by the municipality’s
ratepayers. Had the
individual respondents been put on notice that they would be called
upon to show cause why they should not
pay the costs of the
application from their own pockets, I would have seriously considered
a motion to that effect.
I accordingly make the following order:
The applicant’s suspension effected on 22 November 2011 is
declared unlawful and set aside
The applicant is to be reinstated into the position of municipal
manager with immediate effect.
The first, second, sixth and twenty-first respondents are ordered to
pay the costs of these proceedings, jointly and severally,
the one
paying the other to be absolved.
_______________________
André van Niekerk
Judge
APPEARANCES
APPLICANT: Mr WP Scholtz, Scholtz Attorneys
FIRST, SECOND, SIXTH
AND TWENTY-FIRST RESPONDENTS: Mr EH Louw, Eric H Louw Attorneys.
1
Unreported,
D 999/11, 28 November 2011.
2
Lebu
v Maquassie Hills Local Municipality
J 2035/11, unreported, 21
October 2011.