About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 151
|
|
SAMWU obo Makola v Nkangala District Municipality (J 610/12) [2012] ZALCJHB 151 (27 March 2012)
Not reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case
no: J 610/12
In the matter between:
SAMWU OBO TENANE C MAKOLA
Applicant
And
NKANGALA DISTRICT MUNICIPALITY
Respondent
Heard
:
23 March 2012
Delivered
:
27 March 2012
JUDGMENT
VAN NIEKERK J
Mr Mokola is employed by the respondent as a municipal manager. On
27 January 2012, he was handed a letter advising him that
he had
been placed on precautionary suspension, with immediate effect, on
full pay. No reasons were provided in the letter for
the suspension,
but Makola was afforded the opportunity to make written
representations within seven days.
In this application, brought on an urgent basis, the applicant seeks
to have Makola’s suspension declared unlawful and
set aside.
I do not in intend to set out the facts relevant to the application;
they are canvassed in the papers. There is a preliminary
issue to be
resolved. This matter originally came before this court on 9 March
2012, when Malindi AJ ruled that the matter was
urgent, directed the
parties to file answering and replying affidavits, and ordered the
respondent to pay the costs of the day’s
proceedings. When the
matter was called, the respondent had filed a brief answering
affidavit dealing only with the question
of urgency, in which it was
disputed that the application was urgent.
A
second answering affidavit, dealing with the merits of the
application, was later filed in accordance with the court’s
directive.
The applicant contends that having failed in its
first answering affidavit to deal with the merits, and not having
denied or otherwise
addressed the contents of the founding affidavit
other than the averments relating to urgency, it was not open to the
respondent
to deal with the merits in a second answering affidavit
and that the applicant’s version is therefore deemed to be
admitted.
There is no merit in this contention. The initial answering
affidavit makes it clear that the response is limited to the
question
of urgency. Implied in that is a reservation of rights to
deal with the merits if and when that should become necessary. As
matters
transpired, it became necessary for the respondent to
address the merits. That is also the assumption that underlies the
court’s
directive as to the filing of further affidavits –
the court would hardly have directed the respondent to file an
answering
affidavit if it had considered the affidavit filed on the
day of the hearing as conclusive of the respondent’s averments
in relation to the founding papers. In any event, given the
conclusion to which I have come in relation to this part of the
proceedings, and as will appear more fully from the reasoning
recorded below, the application stands to be dismissed on its own
version.
The applicant seeks a final order. The test that the applicant is
required to meet is well-established. The applicant is to
demonstrate a clear right to the relief sought, an injury actually
committed or reasonably apprehended, and the absence of similar
protection by any other ordinary remedy.
It is not disputed that on 29 February 2012, the applicant referred
a dispute to the CCMA, contending that his suspension constituted
an
unfair labour practice. The dispute had been set down for con-arb on
22 February when the conciliation failed but the arbitration
could
not proceed, since the respondent had objected to an arbitration
hearing immediately following the conciliation. An arbitration
hearing has been scheduled next month, April 2012.
The applicant contends that the scheduled arbitration is not an
alternative remedy, since that process concerns the fairness
of
Makola’s suspension, while these proceedings concern the
question of lawfulness. In my view, in the present circumstances,
this is not a material distinction. At issue are the procedural
requirements relevant to Makola’s suspension, and in
particular, those requirements established by Makola’s
contract of employment and the relevant regulations governing the
suspension of a municipal official. Should the respondent’s
conduct be found wanting in the arbitration process (either
on the
basis that it failed to comply with the contract of employment or
the applicable regulations), the suspension will undoubtedly
be held
to constitute an unfair labour practice, and will be set aside. A
suspension that is unlawful (at least in relation to
any
non-compliance with contractual or regulatory measures) is by
definition unfair. It seems to me that having invoked the
arbitration process, there is no reason why the applicant should not
permit that process to take its course. Since the applicant
is
afforded the same or similar protection by another available remedy,
this application stands to be dismissed.
There is a dispute on the papers that concerns the clear right for
which the applicant contends. The respondent avers that there
was a
discussion between Makola and the respondent’s executive mayor
prior to the council adopting a resolution to place
the applicant on
special leave, and that the applicant was well aware of the nature
of the allegations of misconduct made against
him. Given the
conclusion to which I have come, it is not necessary for me to make
any finding in this regard, and I refrain
from doing so. It is
ultimately for an arbitrator to decide whether there was substantial
compliance with both Makola’s
contract of employment, and the
regulations that governed that employment.
Finally, in relation to costs, I see no reason why costs should not
follow the result. To be clear, the order for costs has no
effect on
the costs order made on 9 March 2012.
Order
For the above reasons, I make the following order:
The application is dismissed, with costs.
_______________________
Van Niekerk J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
P Kennedy SC
Instructed by
Allardyce & Partners
RESPONDENT:
R Edmonds, Ruth Edmonds
Attorneys