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[2011] ZALCD 9
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Biyase v Sisonke District Municipality and Another (D 999/11) [2011] ZALCD 9; (2012) 33 ILJ 598 (LC) (28 November 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
case
no: D 999/11
In the matter between:
TP
BIYASE
….....................................................................................
Applicant
and
SISONKE
DISTRICT MUNICIPALITY
…................................
First
respondent
NM
MABASO
…................................................................
Second
respondent
Heard
: 18 November 2011
Delivered
: 28 November 2011
Summary:
Suspension of senior manager contrary to Local
Government Disciplinary Regulations for Senior Managers, 2010.
Suspension unlawful
but not unfair, in light of judgment in
SAMSA
v Mackenzie.
judgment
STEENKAMP J
Introduction
This urgent application arises, like so many others before this
court, from the suspension of a senior manager by a municipality.
He
asks that the suspension be set aside on the grounds that is
unlawful and unfair. The question of a lawful suspension arises
from
an interpretation of the Local Government: Disciplinary Regulations
for Senior Managers, 2010
1
(“the regulations”). Those regulations impose
obligations on municipalities with regard to procedural steps in
disciplinary proceedings that are far more stringent than those
imposed by the Labour Relations Act
2
– and arguably unnecessary and out of line with the objectives
of the LRA – but the first respondent is bound by
them.
Background
The applicant, Mr Thokazani Paulinus Biyase, is the Executive
Director: Corporate Services of the first respondent, the Sisonke
District Municipality (“the municipality”). As such, he
falls within the definition of “senior manager”
in the
regulations. The second respondent, Mr MM Mabaso, is the municipal
manager.
On 27 October 2011 Mabaso gave the applicant a letter headed “notice
of intention to suspend”. The letter included
a “complaint
sheet” setting out four allegations of gross misconduct by the
applicant. Mabaso went on to state:
“
The
municipality intends conducting a full investigation into the matter.
It is the municipality’s intention to suspend you
pending the
finalisation of the investigation. Before making a final decision to
suspend you on full pay, the municipality wishes
to give you an
opportunity to make written representations as to why you should not
be suspended. You are hereby afforded an opportunity
to make written
representations by
close
of business on 31 October 2011.
”
The applicant’s attorneys of record made representations on
his behalf on 31 October 2011 and more fully on 1 November
2011. At
the outset, they alleged that his suspension was “unlawful
and/or unfair”. They pointed out that “the
legislature
saw fit to prescribe a period of seven days as an adequate period
within which a person in our client’s position
should make
written representations as to why he should not be suspended”.
They alleged that the applicant did not have
sufficient notice. They
nevertheless addressed the four complaints and alleged that,
firstly, they were baseless; and secondly,
that they did not warrant
a precautionary suspension.
On the same day, 1 November 2011, the municipality’s executive
committee resolved to suspend the applicant. Mabaso informed
the
applicant in writing that he was suspended on full benefits with
immediate effect pending a further investigation. Mabaso
instructed
him not to attend the workplace or to contact any municipal
employees.
The applicant launched this application on 7 November 2011. It was
initially set down for hearing before Cele J on 8 November
2011. On
that day the parties agreed to the further exchange of pleadings and
the matter was postponed to 18 November 2011 by
agreement.
Legal framework
The Regulations
The Regulations were made under s 120 of the Municipal Systems Act.
3
Chapter 2 of the regulations is styled as a disciplinary code. It
applies to all municipalities and “senior managers”,
defined as municipal managers referred to in s 82(1) of the
Municipal Structures Act
4
or s 56 of the Systems Act.
The regulations stipulate that discipline must be effected with due
regard to the Code of Good Practice in Schedule 8 of the
LRA.
5
However, contrary to the simple and expeditious disciplinary
procedures provided for in those guidelines, the regulations proceed
to impose rigid processes and timelines for disciplinary action
against senior managers.
For instance, regulation 5 prescribed the following elaborate
procedure:
“
5.
Disciplinary
procedures
.—(1) Any
allegation of misconduct against a senior manager must be brought to
the attention of the municipal council.
(2) An allegation
referred to in sub-regulation (1) must be tabled by the mayor or the
municipal manager, as the case
may be, before the municipal council
not later than seven (7) days after receipt thereof, failing which
the mayor may request the
Speaker to convene a special council
meeting within seven (7) days to consider the said report.
(3) If the municipal
council is satisfied that—
(a) there is a reasonable cause
to believe that an act of misconduct has been committed by the senior
manager, the municipal council
must within seven (7) days appoint an
independent investigator to investigate the allegation(s) of
misconduct; and
(b) there is no evidence to
support the allegation(s) of misconduct against the senior manager,
the municipal council must within
seven (7) days dismiss the
allegation(s) of misconduct.
(4) The investigator
appointed in terms of sub-regulation (3) (a) must, within a
period of thirty (30) days of his
or her appointment, submit a report
with recommendations to the mayor or municipal manager, as the case
may be.
(5) The report
contemplated in sub-regulation (4) must be tabled before the
municipal council in the manner and within
the timeframe as set out
in sub-regulation (2).
(6) After having
considered the report referred to in sub-regulation (4), the
municipal council must by way of a resolution
institute disciplinary
proceedings against the senior manager.
(7) The resolution in
sub-regulation (6) must—
(a) include a determination as
to whether the alleged misconduct is of a serious or a less serious
nature;
(b) authorise the mayor, in the
case of municipal manager, or municipal manager, in the case of the
manager, directly accountable
to the municipal manager to—
(i) appoint—
(aa) an independent and external
presiding officer; and
(bb) an officer to lead
evidence; and
(ii) sign the letters of
appointment.”
This is a far cry from the simple process outlined in the guidelines
contained in Schedule 8 to the LRA.
The process for a precautionary suspension is dealt with
specifically in regulation 6. Unfortunately, it is a badly drafted
regulation and its intention is far from clear. It 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.”
The contentious sub-regulation on the facts of this case is
regulation 6(2):
“
(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.”
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.
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?
In order to make sense of this provision, one has to give meaning to
the clause “within seven days
6
of being notified of the council’s decision to suspend him or
her.”
In
Nell v Mulbarton Gardens (Pty) Ltd
7
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.
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.
Mr
Pillay
, for the respondents, sought to persuade me that
the clause could mean that a manager is suspended on day one; and
that he then
has a further seven days within which to make
representations. Thus, said Mr Pillay, a manager who is suspected of
serious misconduct
– eg fraudulent tender procedures –
can be removed immediately, but the principle of
audi alteram
partem
will still be complied with.
Such an interpretation cannot be sustained in the context of the
regulation as a whole. Sub-regulations (3) and (4) make it clear
that, after the manager had made representations, the council must
consider them; and only thereafter can it suspend the manager.
Ergo,
the manager must be given at least seven days within which to make
representations why he or she should not be suspended;
then the
council has another seven days within which to consider those
representations; and only then, should the representations
not be
persuasive, may the council suspend the manager.
These provisions may well be unduly onerous. But it is common cause
that the parties are bound by them. Failure to do so would
make the
suspension unlawful for want of compliance with the regulations.
Mr
Mkwibiso
, for the applicant, also sought to base his claim
on a common law right to fair dealing to be implied in the contract
of employment.
He persisted with that argument despite the clear
authority in
South African Maritime Safety Authority v Mackenzie
8
that no such implied right exists in our law. He went so far as to
suggest that the judgment of the Supreme Court of Appeal is
“clearly
wrong” and that I should reject it. I will not accept that
invitation. I am clearly bound by the pronouncement
of the SCA in
Mackenzie.
But that does not detract from the applicant’s claim based on
regulation 6, as opposed to any implied right to fair dealing
to be
read into his contract of employment. As I recently pointed out in
the similar case of
Lebu v Maquassi Hills Local Municipality
9
:
‘
It
must also be borne in mind that the language of ... the regulations
is clear in this case. The employee has a contractual right
to know
what the reasons are for his intended suspension, and to make
representations in regard thereto. This is not a case where
the
employee's claim is based on an implied right to fairness. In
South
African Maritime Safety Authority v McKenzie
10
the Supreme Court of Appeal has now held that no such an implied
right can be read into contracts of employment generally. Therefore,
Lagrange J held in
Mahlalela
v Pensions Fund Adjudicator
11
,
with reference to the earlier judgment in
Mogothle
v Premier of the Northwest Province & others
12
:
“
In
that case, the court held that a trio of decisions by the Supreme
Court of Appeal had established an employee’s contractual
right
to fair dealing that can be enforced by the Labour Court under the
provisions of
s 77(3)
of the
Basic Conditions of Employment Act 75 of
1997
, which exists independently of any statutory rights to
protection against unfair labour practices.
However, since this decision,
the SCA decisions referred to in
Mogothle
have been revisited
by the SCA in its recent decision in the
McKenzie
case. In
that case the SCA unequivocally held that, in the absence of specific
provisions in a contract of employment to the contrary,
an employer
did not owe an employee a contractual obligation to act fairly.
Wallis JA distinguished the authority of the previous
decisions
referred to by Van Niekerk J [in
Mogothle
], finding in effect
that those decisions did not establish the existence of a contractual
right to fairness. It might be that there
could be sound reasons not
to follow the apparently authoritative dicta in
McKenzie
, but
none were advanced and accordingly I must accept for present purposes
that the latest pronouncement of the SCA on the non-existence
of a
contractual duty of fairness must prevail. Consequently, insofar as
the applicant relies on a contractual obligation of fair
dealing, he
cannot succeed.”
‘
But as
I have pointed out, the applicant in this case has a clear
contractual right, and there is no need to read such a general
implied term into his contract of employment. There is a specific
provision in the contract – and in
regulation 6
– dealing
with the employee’s rights prior to suspension.
The sentiments expressed by Van
Niekerk J in
Mogothle
are therefore still applicable to the
case before me, even if no general right to fair dealing can be
implied in the contract of
employment. In this case, the contractual
rights pertaining to the reasons for suspension are set out in the
applicant’s
contract of employment and in the Regulations.
‘
And,
as Nugent JA recently pointed out in
Manana
v King Sabata Dalindyebo Municipality
13
:
“
The
evidence in this case establishes the existence of a contract of
employment between the municipality and [the applicant]. And
he
wishes to enforce the contract... That he might have been entitled to
other relief under the remedies provided for under the
Labour
Relations Act does not somehow extinguish his contractual rights.”
In the current case, I will disregard the applicant’s claim to
an implied right to fair dealing, following the judgment
in
Mackenzie
. I will, however, consider his rights under
regulation 6.
Urgency
Mr
Pillay
submitted that the matter was not urgent. I
disagree. The applicant was suspended on 1 November. (He says that
he only received
the letter of suspension on 2 November). He
launched the application on 7 November. He does not know when his
disciplinary hearing
will take place. In terms of the regulations it
must be within three months. He acted with sufficient alacrity in
bringing this
application, and he could not be expected to wait
until the suspension had run its course.
Clear right?
In terms of regulation 6, the applicant had a clear right to be
given seven days’ notice of the council's intention to
suspend
him. He was given notice on 27 October to submit representations by
31 October. That amounts to four days’ notice.
It is a
contravention of the regulations. Technical as it may seem, it
renders the suspension unlawful. The applicant has established
a
clear right for the first part of the relief he seeks, i.e. to
declare the suspension unlawful and to set it aside.
The applicant also seeks consequential relief to order the
respondents to investigate alleged acts of fraud and corruption by
other employees and to deliver a report to this court within three
months. He has not established a clear right to that relief.
Irreparable harm
Although the applicant has had the opportunity to make
representations, is still suffering harm. As he set out his
affidavit,
his integrity and reputation has been sullied. And, as
Van Niekerk J pointed out in
Mogothle (supra):
14
“
In so
far as the substantive dimension of fair dealing in relation to
suspension is concerned, Halton Cheadle has observed that
suspension
is the employment equivalent of arrest, with the consequence that an
employee suffers palpable prejudice to reputation,
advancement and
fulfilment. On this basis, he suggests that employees should be
suspended pending a disciplinary enquiry only in
exceptional
circumstances. The only reasonable rationale for suspension in these
circumstances, Cheadle suggests, is the reasonable
apprehension that
the employee will interfere with any investigation that has been
initiated, or repeat the misconduct in question
(see Cheadle
“Regulated Flexibility and Small Business: Revisiting the LRA
and the BCEA” (DPRU Working Paper number
06/109 DPRU,
University of Cape Town, June 2006, also published in edited form in
(2006) 27 ILJ 663 at paragraph [71])).”
In the current case, the municipality has simply provided the
applicant with a copy of the “complaint sheet” outlining
the allegations of misconduct. It has not explained why, or even if,
in the language of regulation 6, there is 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.”
In these circumstances the applicant is suffering harm that cannot
be repaired in any way other than to reinstate him pending
a proper
procedure in terms of the regulations.
Absence of alternative remedy
The applicant specifically disavows any reliance on an unfair labour
practice in the form of unfair suspension as contemplated
by s
186(2)(b) of the Labour Relations Act.
15
Had he relied on that provision, he may have had an alternative
remedy by referring an unfair labour practice dispute to the
relevant bargaining council in terms of s 191 of the LRA. (Although
that subsection could be interpreted to apply only to suspension
as
a disciplinary measure in itself, and not as a precautionary
suspension pending a disciplinary process). But his claim is
founded
on a breach of the regulations. The only alternative remedy would be
a claim for damages. That would be nearly impossible
to quantify and
would in any event be too late, as it would not be heard before he
is due to face a disciplinary hearing, which
has to take place
within three months from the date of suspension in terms of
regulation 6(6).
Conclusion
The applicant has established that his suspension is unlawful. He is
entitled to a declaratory order in that regard and to an
order that
he must be reinstated. He is not entitled to the further
consequential relief he seeks.
Costs
The applicant has had to incur legal costs in order to enforce his
rights. His attorneys alerted the municipality to its failure
to
adhere to the regulations, even before he was suspended. The
municipality could easily have rectified its unlawful actions.
It
did not do so. Costs must follow the result.
Ruling
Therefore, I issue the following order:
The applicant’s suspension by the respondents on 1 November
2011 is declared unlawful.
The applicant’s suspension is set aside and the respondents
are ordered to reinstate him.
The respondents are ordered to pay the applicant’s costs.
_______________________
A J Steenkamp
Judge
APPEARANCES
APPLICANT: VG Mkwibiso of Shepstone & Wylie.
RESPONDENTS: I Pillay
Instructed by Norton Rose.
1
Government
Notice No 344,
Government Gazette
No 34213, 21 April 2011.
2
Act
66 of 1995 (the LRA).
3
Local
Government: Municipal Systems Act, Act 32 of 2000.
4
Local
Government: Municipal Structures Act, Act 117 of 1998.
5
Regulation
4(3)(b).
6
“
day”
is defined as “calendar day”.
7
1976
(1) SA 294
(W) 297H.
8
(2010)
31
ILJ
529
(SCA).
9
J
2039/11 (Unreported, 21 October 2011) at paras [36] – [39].
10
2010
(3) SA 601
(SCA);
[2010] 3 All SA 1
(SCA).
11
(2011)
32
ILJ
1932
(LC) paras [11] – [12].
12
(2009)
30
ILJ
605
(LC);
[2009] 4 BLLR 331
(LC).
13
[2011]
3 BLLR 215
(SCA) para [23].
14
Mogothle
v Premier of the Northwest Premier & another
[2009]
4 BLLR 331
(LC) para [31].
15
Act
66 of 1995.