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[2013] ZALCJHB 14
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Retlaobaka v Lekwa Local Municipality (J 20/13) [2013] ZALCJHB 14; (2013) 34 ILJ 2320 (LC) (7 February 2013)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
case no: J 20/13
In the matter between:
DIPONE ORAPELENG TSIETSI
RETLAOBAKA
Applicant
and
LEKWA LOCAL MUNICIPALITY
First
Respondent
TSHABALALA LINDA
BERNARD(
N.O.
)
Second
Respondent
Heard
:
25 January 2013
Delivered
:
07 February 2013
Summary: (suspension of senior manager- regulations not complied with
but regulations not applicable-invalid appointment)
JUDGMENT
LAGRANGE, J
This is an urgent application which was launched on 11 January 2013.
By the time the matter was set down for hearing on 17 January
the
respondents had filed a counter application disputing the
applicant's employment status. The matter was postponed to allow
both parties to file their respective answering affidavits and
replying affidavits.
The application to uplift the applicant's suspension
On 1 June 2010, the applicant was appointed as the Chief Financial
Officer of the Lekwa Local Municipality, the first respondent.
The
first attempt to suspend the applicant was made on 20 November 2012.
That suspension was set aside in terms of a settlement
agreement
which was made an order of this court on 7 December 2012.
The municipality relaunched the suspension process on 18 December
2012 when it delivered a notice to the applicant at his home
calling
for his written representations why he should not be suspended from
active employment pending disciplinary charges against
him. The
letter stated that a special sitting of the municipal council on 14
December 2012 had considered allegations of financial
misconduct
against him, brought by the Municipal Manager and/or the Executive
Mayor “...in terms of section 5 of the Local
Government
Disciplinary Regulations for Senior Managers”. The notice went
on to state:
"5. The council then resolved that it was satisfied, as part
of the provisions of section 5 (3)([...illegible...]) of the
regulations
that there is a reasonable cause to believe you have
committed acts of financial misconduct and that from now onwards the
matters
to be dealt with in terms of section [...illegible...] of the
regulations.
6. You are hereby requested an expected, in terms of section 6
(2), to submit your written representations within 7 (seven) days
from date of this notification."
Attached to the notice was a list of 10 provisional charges of
misconduct against him. The applicant’s lawyers’ offices
were closed and as a precaution he responded to the allegations of
misconduct set out in the letter on 20 December 2012. On 27
December
2012 he received a notice of his suspension, which was dated 24
December 2012, in terms of which his suspension was
in force with
immediate effect.
Subsequently, the applicant’s attorneys demanded that the
council rescind its decision to suspend the applicant and thereafter
launched this application. The applicant claims that his suspension
was unlawful on two grounds, namely: a failure to comply
with clause
6 (1) and clause 6 (2) of the regulations. He contended that it was
also common cause that his suspension was contrary
to the provisions
of clause 6 (5) of the regulations. Clause 6 of the Local
Government: Disciplinary Regulations for Senior Managers
(Notice 344
of 21 April 2011, GG34213) states:
“
Precautionary suspension
6.
(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 subregulation
(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 central argument of the applicant is that
even though the respondent set out the allegations of misconduct in
the notice of
18 December 2012, by failing to set out the reasons
why he should not be present in the workplace, the applicant was
unable to
effectively respond on why his suspension was not
necessary. In support of this argument, the applicant marshalled
case authority
for the proposition that it was not sufficient for
the municipality nearly to set out the charges against the manager
but also
to set out what purpose which the suspension would serve as
envisaged under regulation 6(1). In particular, he cited the
decision
of Steenkamp J, in
Biyase v
Sisonke District Municipality & others
(2012)
33 ILJ 598 (LC)
, relied on by
Van Niekerk J in
Lebu v Maquassi
Hills Local Municipality & others
(2)(2012) 33
ILJ
653 (LC)
.
Van
Niekerk J stated, inter alia:
“
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
”
1
(emphasis added)
Mr Tsatsawane, appearing for the respondent, argued that in the
decisions mentioned, the question of whether it was sufficient
merely for the council to have reason to believe that a suspension
was necessary, without conveying this to the employee, was
not
addressed. He argued on the basis of decisions such as
South
African Defence and Aid Fund and another v Minister of Justice
1967(1) SA 31(A)
that nothing in clause 6 required the
council to provide its reasons under sub-clauses (1)(a) or (b) to
the employee for the
employee to respond to. All that was necessary
was for the council to be satisfied that it had reason to believe
his suspension
was justified. Consequently, the respondent argued
that a notice would comply with clause 6 provided it set out the
charges and
invited representations.
I accept that it may be so that this interpretation was not argued
in any of the reported cases cited above, but in my view it
would be
an unduly narrow reading of the provisions on precautionary
suspension if they were read to imply that it was not necessary
for
the Council to convey why it believed the suspension was necessary.
As the applicant points out responding to the charges
does not in
and of itself address the reasons for the suspension on which the
employer might rely under subclauses 6(1) (a) or
(b). The whole
object of inviting representations from the employee on whether he
or she should be suspended would be rendered
nugatory if the
employee is in the dark as to why the employer believes he or she
should not be at the workplace until the disciplinary
proceedings
concluded. Without knowing the employer's reasons, the employee
could only guess what they might be and his or her
response would be
mostly superfluous and speculative answers to unknown propositions.
I accept that before taking the decision
to suspend the employee the
council only needs to have reason to believe it would be desirable
for one or more of the reasons
mentioned based on the information it
has before it, but that information also includes the employee’s
representations
on the purpose of the proposed suspension, which
clearly must be made known to the employee for those representations
to be meaningful.
It is obvious that the notice of 18 December 2012 contained no
explanation of the purpose the suspension was supposed to serve
and
consequently the applicant could not have known which of several
reasons might have been behind the intention to suspend
him, which
would necessarily undermine his ability to make a representation on
the issue.
The counter application
The respondent contends that irrespective of the merits of the
applicant’s case on the lawfulness of his suspension discussed
above, his invocation of the rights in regulation 6, is incorrectly
premised on an assumption that he is indeed a senior manager
to whom
the disciplinary regulations of 2011 apply. The respondent argues
that the applicant’s employment as chief financial
officer was
never perfected in terms of the requirements of the Local
Government: Municipal Systems Act 32 of 2000 (‘the
Systems
Act’).
The applicant effective date of employment was 1 June 2010. On 3
June 2010, the council had resolved to appoint the applicant
on a
three year contract with effect from that date. On 22 June 2010, a
letter of appointment was sent to the applicant confirming
the
appointment from the effective date and stated that the appointment
‘included’ his stipulated remuneration package
and
“...as per
section 57
of the
Local Government: Municipal
Systems Act 32 of 2000
an employment contract and performance
agreement to be entered into and signed between the Administrator
and yourself on or before
but not later than 2010-07-31.”
By 30 June 2010, the applicant had signed an employment contract,
but this was never countersigned by the Administrator and nor
was a
performance agreement ever concluded though it clearly was the
parties’ intention to do so. Moreover, the contract
signed by
the applicant was not for a three year term but for a five year
term. Mr Scholtz, appearing for the applicant, argued
that the
Council resolution of 3 June 2010 had been primarily concerned with
the effective date of appointment but it is difficult
to read the
Council resolution any other way than to have also intended a three
year agreement. Even a year later in November
2011 the council took
another resolution that the acting municipal manager should be
authorised to conclude a contract with him
in terms of the original
resolution of 3 June 2010.
It was argued by the applicant that since the resolution to appoint
him and his signature of the contract took place in 2010,
he was
appointed under the Systems Act prior to its amendment on 29 April
2011. In 2010, the Systems Act did not require the
signature of both
parties before service commenced as section 57(3) of that Act
required after the amendment. However even prior
to the amendment
the appointment of a senior manager was subject to the conclusion of
a performance agreement.
Subsequent to the promulgation of the amendment of the Systems Act,
the requirements for validating an appointment of a senior
manager
were made more stringent and I am satisfied that the applicant’s
purported contract did not meet those pre-requisites
and he could
not have been validly appointed to his position after they were
promulgated. However, even in their un-amended form,
his appointment
was subject to the conclusion of a performance agreement ‘within
a reasonable time’ which condition
has never been fulfilled
after more than twenty months since he was employed. In any event,
in view of the disjuncture between
the term of the contract he
signed and the clear intention of the council that his initial
contract should only be for a three
year term, it is clear both that
there was no consensus on this vital term of the contract and it was
not a contract having the
term authorised by the Council.
In the circumstances, while it is clear that the applicant was
employed by the council, his appointment as a senior manager to
whom
the disciplinary regulations apply was not finalised and accordingly
the regulations on which the applicant relies to assert
his rights
not to be suspended are of no application to him.
Although the respondents cannot be estopped from asserting the
invalidity of the applicant’s appointment because that would
be tantamount to validating an appointment which the Systems Act
does not permit, it is clear that at the time of attempting
to
suspend him, it gave the impression that it accepted he was validly
appointed under that Act, and his response to the steps
it took was
quite understandable. Accordingly, I do not think it would be fair
to make him pay the respondent’s costs in
either application.
Order
In the light of the analysis above,
the application to lift the applicant’s suspension by the
respondents is dismissed, and
it is declared that the applicant has at the date of this judgment
not been validly appointed as Chief Financial Officer in
terms of
the Systems Act.
Each party must pay its own costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: WP Scholtz of Scholtz Attorneys
FIRST RESPONDENT: K Tsatsawane instructed by Gildenhuys Malatji
1
Maquassi
Hills
at 660,[16].