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[2013] ZALCJHB 45
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Mathabathe v Emfuleni Local Municipality and Others (J 511/2013) [2013] ZALCJHB 45 (15 March 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable
O
f interest to other judges
case no:
J 511/2013
In the matter between:
MATHABATHE PAULINE KOKETSO
Applicant
and
EMFULENI LOCAL MUNICIPALITY
First Respondent
MASITE JANE SEDIE
Second Respondent
SHABALALA SAM
Third Respondent
Heard
:
12
and 14 March
2013
Delivered
:
15
March 2013
Summary:
Urgent application wherein a manager sought an
interdict against the Municipality for having withdrawn her from a
course. The requirements
of a final interdict restated
.
JUDGMENT
MOSHOANA,
AJ
Introduction
[1] This
is an urgent application brought by the
applicant seeking an interdict against her withdrawal from a training
course offered by
the University of Pretoria. On 12 March 2013, the
applicant approached this court seeking a declaratory relief to the
effect that
the decision of the second and third respondent to
arbitrarily terminate her attendance of the Municipal Finance
Management Programme
(“the MFMP”) as set out in terms of
Municipal Finance Management Act, circular 60 is unlawful. Further,
to interdict
the respondents from interfering with her attendance
pending referral of the unfair labour practice claim to the
bargaining council.
[2] Having listened to the applicant’s
representative, I was not persuaded that a clear right was shown.
Applying the principle
of a
prima facie
right even though open to doubt, I was inclined to
issue a
rule nisi
with
a right to anticipate. On 14 March 2013, the respondents anticipated
the order. Full set of papers was filed. Before I could
listen to
argument, the applicant’s representative placed on record that
the applicant would have wished to have the matter
argued the
following day. I must mention at this stage that on anticipation, it
is the respondent that determines the urgency of
the matter. The
respondents impressed on me that the matter required urgent
attention, as they needed to replace the applicant
with another
employee. It seems logical that a party armed with an interim order
ordinarily sees no urgency in a matter anymore.
The very reason that
parties are granted the right to anticipate is that being affected by
an interim order issued in their absence
on an urgent basis they are
afforded the right to be heard on the same basis. Under the
circumstances, it is improper to allow
an applicant armed with an
interim order to still dictate terms on anticipated day.
Background facts
[3] The
applicant is currently employed by the first respondent as a manager
in the Internal Audit Department. On or about 15 June
2007, the
Minister of Finance acting with the concurrence of the Minister for
Provincial and Local Government issued regulations
under GG No 29967
within the contemplation of section 168 of the Municipal Finance
Management Act. The aim of the regulation is
to regulate competence
levels of certain officials within the Local Municipalities.
[4]
During April 2012, the National Treasury issued a Circular known as
MFMA Circular No. 60. On 22 March 2012, the applicant addressed
an
email to one Abram Mokhoantle to the following effect:
‘
I
would like to find out whether you managed to secure the dates for
CMPD for planning purposes. Do we need to complete any forms?
In her
founding papers, the applicant alleges that on that day what she did
was to remind Abram about her attendance of the Programme.
On 23
March 2012, Abram respondent to her by saying: ‘not as yet, we
will communicate the date to you shortly.
However
the Supervisor must approve your training
.’
(My underlining).
[5] On 24 March 2012, the applicant responded by
saying:
‘
true
,
she had already agreed to it, but we will have to do it in writing. I
will do it on Monday.’ The applicant alleges that
on 28 May
2012, she had a discussion with the second respondent and one
Lulamile regarding her attendance of the MFMP course. In
that
discussion, the second respondent suggested that she be included in
the list and be removed from another list as the Institute
of the
Municipal Finance Officers is paying for her tuition fees. The second
respondent vehemently denied these allegations. The
applicant alleges
that she emailed Abram on 29 May 2012, to advise him of the
discussions with the second respondent and Lulamile.
The respondents
denied this allegation. She was criticised for not annexing the
alleged email to Abram. In reply, she referred
to annexure PJM 2,
which was not attached nor did her representative hand it up in
court.
[6] On 5
November 2012, the applicant addressed an email to Abram asking: ‘How
far is the process, any new dates so far. I
need to register other
courses for next year. Please advise.’ On the same day, Abram
escalated the issue to one Sol and said:
‘Please assist Jacque
with the registration dates.’ On the same day the applicant
requested the contact details of
Sol
[7] On 12
December 2012, the applicant held a telephonic discussion with Sol.
Later in the day, she confirmed the discussion in
an email, wherein
she recorded that she will like to be included in the next list for
January 2013 for CPMD. She is currently a
manager in the Internal
Audit Department. She has been previously informed that she shall be
included in the next list. Amazingly,
on 10 January 2013, she wrote
to Sol and stated that Sol mentioned to her that she will be included
in the list and she wanted
to know what happened, whether she will be
attending or not. In her founding affidavit, she testified that in
January 2013, she
emphasised to Sol that she needed to make a
decision regarding her Masters degree. Sol informed her that he has
been in contact
with the University of Pretoria and dates will be set
soon in January 2013. The respondents deny this allegation and state
that
Sol was misled into believing that she had an approval. In
rejecting this, the applicant refers to an email on 29 March 2012
written
by her referring to the discussion with the second respondent
where allegedly there was an agreement for her to attend.
[8] On 1 February 2013, against the background of
the allegation that the second respondent agreed that she should be
in the list,
she wrote a letter and mentioned the following:
‘Previously, you agreed that I should participate in the
municipal finance
management project in the interest of the
municipality. It is
proposed that I be
authorised for enrolment this year
respectively
with the aim of promoting the delivery of quality professional
service, share information and collaborate on municipal
financial
management issues.
I therefore request
your approval for enrolment of this course during the current year.
’
In her founding papers she did not disclose the
full contents of this letter. In a rather cavalier manner she
testified that she
wrote a memo in respect of attending the course
and made follow-ups with the secretary of the second respondent.
[9] On 20
February 2013, the second respondent refused to recommend her to
attend the course. On 21 February 2013, Sol emailed a
group that was
suggested, which will be sent to Pretoria University. The applicant’s
name appeared on the suggested group,
with her date of attendance as
26 February 2012. On 22 February 2013, the applicant took ill.
[10] On 25
February 2013, the applicant alleges that she formally confirmed by
email her attendance to Sol and DMM: Corporate Services.
Later she
learnt that she had been removed from the list. She went to the
second respondent’s office and could not find her.
She then
approached Sol, who after discussing with DMM: Corporate Services
said she must attend on 26 February 2013. The respondents
deny this
allegation. On their version, the applicant misled Sol and DMM:
Corporate Services to believe that the second respondent
gave
approval. As instructed by Sol, she attended the course from 26
February 2013 to 1 March 2013. On 5 to 7 March, she received
confirmation letter from the University for the attendance for 13 to
15 March 2013.
[11] On 5
March 2013, she received a letter from the second respondent, who
learnt that she was attending the course without her
consent, to
provide written response why she ignored protocol and willfully
disregarded authority. On 6 March 2013, the applicant
wrote a
condescending email and failed to give a written response as
directed. However, in her founding papers she states that
she told
the second respondent that she attended as per the instructions of
the DMM and Sol. This statement does not appear in
her email annexed
to her founding papers. On 11 March 2013, Sol confirmed to her that
she had been removed following a decision
taken in the meeting of 4
March 2013, a record of which was made available to her. An amount of
R64000 has already been paid for
her tuition and R4000 for her
accommodation. The respondents state that the Chief Financial Officer
is to absorb those costs.
[12]
Aggrieved by the removal, the applicant on 12 March 2013 launched
this application and gave the respondent effectively 30 minutes
to be
in court. As pointed out earlier an interim order was issued.
Evaluation
[13] The determination of this matter turns largely on the question
whether the applicant had a right to attend the course. Both
representatives agreed to this proposition from the court. Shongwe
appearing for the respondents agreed to the proposition that
where
there is an obligation there is a corresponding right. According to
Makonoto appearing for the applicant, the right is located
in
circular 60, section 83, 107, 119 and 165 of the MFMA. This
contention was only made in the submissions to court. In her founding
papers, the applicant located her clear right in circular 60 only.
The principle that a party stands and falls by his or her founding
papers holds true even in urgent applications. In my mind failure to
fully set out one’s case in the founding papers is equally
fatal irrespective of the urgent approach. The applicant failed to
set out facts critical to her case when such facts were clearly
within her knowledge. A party cannot formulate its case in reply. It
is clear in my mind that the applicant concealed the true
facts as
set out in her letter of 1 February 2013 because such disclosure is
detrimental to her punted right to attend. It is also
clear in my
mind that when she wrote the letter she was fully aware that the
policy so require. Besides Abram had reminded her
of this
requirement, to which she replied true.
[14] In my view, circular 60 does not create rights. It seeks to
clarify the regulations and the Act with regard to competency
levels.
Section 83 is, in my view, the section where a right should be
located. The respondents contend that the course is reserved
for the
so-called section 56 and 57 employees. Regarding other employees, it
with the discretion of the municipality. In countering
this
submission, Makotoko referred to circular 60 where it sought to deal
with officials appointed from the date of the circular.
Reliance was
placed on the statement that training opportunities are available to
all persons whether they are current or future.
The submission being
that the course is not limited to section 56 and 57 employees. When
the applicant’s counsel argued the
matter on 12 March 2013, he
advised the court that the right is located in section 83 and the
applicant is a senior manager contemplated
therein. This contention
was jettisoned later. The court was advised that the applicant was
not a senior manager. The criticism
that nowhere in the circular or
the Act is it expressed that the course is reserved for section 56
and 57 employees is misplaced.
Proper reading of section 83 suggest
that such employees are contemplated.
[15] Section 83 (1) applies to an accounting officer, senior
managers, the chief financial officer and other financial officials.
It is not by accident that section 83 is located in chapter 9 that
deals with budget and treasury office. In terms of section 81
(1)
(e), financial management resides with the chief financial officer.
The term financial official as employed in section 83 (1)
is defined
in the regulations to mean an official exercising financial
management responsibilities, which includes the accounting
officer,
the chief financial officer, senior manager and other financial
official. For one to be regarded as a financial official,
one must
exercise financial management responsibilities. In her founding
papers, all the applicant told the court was that she
was a manager
in the Internal Audit Department. She did not allege that she
exercises financial management responsibilities. She
admitted that
her functions include handling special audits, risk management and
IT. In reply, she sought to make out a case that
her direct duties
are those listed in section 165 (2) (b) of the MFMA. The difficulty
with this allegation is that it is made only
in reply. Further
section 165 (2) (b) sets out the functions of the unit and not of an
individual. It was incumbent on the applicant
to make an averment
that places her within the contemplation of section 83. She failed to
do so in her founding papers.
[16]
Section 107 is couched in the same terms as section 83. If anything,
the obligation to meet the competency levels falls on
those mentioned
officials. Section 119 applies only to supply chain management
officials. Declaratory relief is akin to interdictory
relief. A party
seeking that must demonstrate a clear right. The applicant dismally
failed to show a clear right. The fact that
her case shifted from a
senior manager within the contemplation of section 83 to something
else is evident enough of the lack of
clear right. Absent of a clear
right, a declaratory and an interdict cannot issue.
[17] Since I hold a view that the applicant failed
to demonstrate a clear right from the Act or any other instrument, I
must consider
whether the applicant was approved to attend the course
and the second respondent arbitrarily withdrew her. The facts of this
case
clearly reveal that the applicant sought permission and the
competent person did not grant it. In a rather disingenuous manner,
the applicant having firstly failed to disclose full facts seeks to
relegate the request for permission to extending courtesy.
She
testifies that her request was an orderly way of leaving her place of
work. This is absurd. The contents of the letter of 1
February 2012
speaks for themselves. Her allegations that she was given permission
in a discussion on 28 May 2012 are denied. Applying
the
Plascon-Evans
Paints (Tvl) Ltd v Van Riebeeck Paints (Pty) Ltd,
1
rule I find that no such permission was given to
her on 28 May 2012. If permission was given, why propose and request
one again?
Her version on this point is improbable and inconsistent
with the admitted facts. There is no merit in a submission that the
policy
provided by the respondents does not provide for permission by
the supervisor. The applicant, by her own conduct on 1 February 2013,
suggests that she was acting in tandem with the policy. I, therefore,
conclude that the application or request for a permission
to attend
training was not approved. In fact, the emails quoted earlier lend
credence to the allegation that she misled Sol. On
the one email, she
records that she informed Sol of the permission that she allegedly
obtained. On the other, she suggests that
Sol promised to include her
in the list.
[18] I now turn to the question of costs. In her
notice of motion, the applicant sought an order that the second and
third respondent
pay the cost
de bonis
propriis
on attorney and own client
scale. Equally, the respondents urged me to discharge the rule with
punitive costs on attorney and own
client scale. In this matter, it
is clear in my mind that costs should follow the results. The issue
is whether I should order
punitive costs against the loosing party or
only normal scale? In my mind, the applicant was indeed less than
candid. She approached
the court with besmirched hands. She was not
open and frank at all. Put it differently, the applicant was
frivolous and vexatious
in this application. It was clearly an
ill-conceived application, which ought not have been brought in the
manner in which it was
brought.
2
[19] In
the result, I am not persuaded that the applicant had a clear right
worthy of protection by way of a declaratory or interdictory
relief.
The applicant has referred a dispute to the Bargaining Council. She
clearly has an alternative remedy if she can demonstrate
that the
conduct of the respondents is unfair. The fact that the respondents
have already paid for the course does not suggest
that she must
obtain a relief in order to avoid fruitless expenditure. Besides
that, should be the problem of the municipality
and not hers. The
rule ought to be discharged.
Order
[20] In the results, I make the following order:
1. The rule issued on 12 March 2013 is hereby discharged. The
applicant is to pay the respondents’ costs on attorney and
own
client scale.
_______________________
Moshoana, AJ
Acting
Judge of the Labour Court of South
Africa
APPEARANCES:
For the Applicant:
Advocate
Makotoko with him Mabena on 12 March 2013 only.
Instructed by
: Motanya Madiba Attorneys,
Roodepoort
For the Respondents: Attorney Shongwe of Shongwe Attorneys,
Johannesburg.
1
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634D-635D.
2
See
Van Dyk v Conradie
1962 SA 413
(C) at 418.