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[2013] ZALCJHB 63
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Mahoko v Mangaung Metropolitan Municipality and Others (J878/13) [2013] ZALCJHB 63 (8 May 2013)
Not reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case
no: J 878/13
In the matter between:
LEBOHANG JOHN MAHOKO
Applicant
and
MANGAUNG METROPOLITAN MUNICIPALITY
First Respondent
JEROME MTHEMBU
Second Respondent
ADV PIETER VENTER
Third Respondent
Heard
:
30 April 2013
Delivered
:
8 May 2013
Summary:
Urgent application to interdict disciplinary hearing
and quash charges. Application dismissed, but Municipality ordered to
provide
documents.
JUDGMENT
STEENKAMP J
Introduction
This is an urgent application to interdict a disciplinary hearing
and to quash the charges against the applicant.
Background facts
The applicant is employed as the General Manager: Fleet Management
Services of the first respondent, Mangaung Metropolitan
Municipality. He has been suspended on full pay for more than a
year, since 23 April 2012, pending a disciplinary hearing to
consider allegations of unauthorised expenditure in excess of R2
million. That the ratepayers of Bloemfontein should have been
paying
the salary of an employee who is not rendering services for more
than a year without the disciplinary process having been
concluded,
is untenable.
1
The question is whether that disciplinary hearing should now
continue, or whether it should be stopped, as the applicant
contends.
The Municipality instructed the applicant to appear before a
disciplinary hearing on 20 November 2012, more than five months
ago.
It was postponed at his request. He was represented by an attorney,
Mr GBA Gerdener of McIntyre and Van der Post attorneys
in
Bloemfontein.
On 5 December 2012 the applicant’s attorney requested that he
be legally represented, despite the fact that the collective
agreement of the South African Local Government Bargaining Council
pertaining to local government employees and embodied in a
Disciplinary Code provides only that:
“
An
employee shall be entitled to representation at any enquiry by a
fellow employee, a sop steward or a trade union official.”
The Municipality conceded to the applicant having legal
representation provided that it would likewise appointed legally
qualified
people to act as initiator and chairperson, despite clause
6 of the Disciplinary Code, that envisions that the chairperson and
initiator would be more senior employees of the Municipality or of
provincial or national government.
The municipality and the applicant’s then attorneys and
counsel, Adv Cronjé, agreed in March 2013 that the hearing
would commence on 25 April 2013. On 8 March 2013 McIntyre & Van
der Post withdrew as the applicant’s attorneys. The
applicant
then instructed his current attorney, Mr Mokhele.
On 11 March 2013 the third respondent, Adv Venter (“the
initiator”) wrote to Mr Mokhele and noted that the hearing
was
set down for 25-30 April 2013. He enquired whether Mr Mokhele would
represent the applicant on those dates and confirmed
that the
applicant had been given two bundles of documents to be used at the
hearing. On 13 March 2013 Mr Mokhele responded:
“
I
hereby confirm my appearance on behalf of Mr Mahoko and further
confirm that the dates are in order.”
On 15 March 2013 Mr Venter wrote to Mr Mokhele again and asked him
to “confirm whether any other document or information
would be
required and whether you would raise any preliminary issues which
might be dealt with in advance and on paper.”
The applicant’s
attorney did not respond, and on 19 March 2013 Venter wrote to him
again and asked him to do so. Later
that evening, Mr Mokhele sent
Venter a “request for further particulars”. He did not
raise any preliminary points.
On 24 March 2013 Venter wrote to him
again, attaching the response to the request for further
particulars, and added:
“
Kindly
indicate, as a matter of urgency, whether you have any further issues
or preliminary issues.”
The applicant’s attorneys did not raise any preliminary
issues, despite these requests and reminders from the initiator,
and
on 3 April 2013 Venter recorded in a further email to Mokhele that:
“
You
were requested to raise any preliminary issues in advance and none
was forthcoming.
Both parties are therefore ready
to proceed with the hearing on the 4 days that were agreed upon.”
Nothing further was heard from the applicant’s attorneys or
counsel. On 25 April the applicant arrived at the hearing,
accompanied by an union official of SAMWU, a Mr Grootboom. Mokhele
attorneys had not withdrawn as the applicant’s
representatives.
Grootboom raised certain preliminary points –
despite the earlier assurance by Mr Mokhele that none would be
raised –
and the hearing was postponed to the next day, 26
April 2013.
[11] On 26 April 2013 the applicant was accompanied by his attorney,
Mr Mokhele; and his counsel, Adv Mene. Mr Mene then raised
the
following preliminary points, contrary to his attorney’s
earlier assurance:
11.1. The Municipality had delayed the disciplinary hearing beyond
the time period envisaged by the Disciplinary Code. Clause 6.3
of
that agreement states that:
“
The
employer shall proceed forthwith or as soon as reasonably possible
with a disciplinary hearing but in any event not later than
three (3)
months from the date upon which the employer became aware of the
alleged misconduct. Should the employer fail to proceed
within the
period stipulated above and still wish to pursue the matter, it shall
apply for condonation to the relevant Division
of the SALGBC.”
11.2. The Municipality appointed an attorney and
an advocate respectively as the chairperson and initiator, whereas
that is not
envisaged by the Disciplinary Code.
11.3. The Municipality did not abide by clause 6.1
of the Disciplinary Code. This clause provides that:
“
An
accusation of misconduct against an employee shall be brought in
writing before the Municipal Manager or his authorised representative
for investigation.”
11.4. The evidence of Mr Hein Strydom from ens
2
forensics or its report should not be allowed, as that entity was
“illegally appointed”.
[12] The chairperson (the second respondent) did not determine the
first point relating to the delay. It appears that he was of
the view
that the complaint in that regard should be referred to the
Bargaining Council.
[13] The chairperson dismissed the second preliminary point relating
to legal representation.
[14] With regard to the application of clause 3.1 – the
referral of a complaint in writing – the chairperson does not
appear to have made a ruling.
[15] With regard to the disclosure of documents, the chairperson
ruled that the applicant should have brought an application to
the
CCMA in accordance with s 16 of the LRA
3
or an application to court in terms of the Promotion of Access to
Information Act.
4
[16] The disciplinary hearing was adjourned in order for the
applicant to approach this court on an urgent basis.
Evaluation / Analysis
[17] In order to consider the applicant‘s claim I shall have
regard to the well-known requirements for interim relief
5
,
i.e. the existence of a
prima facie
right; the apprehension of
irreparable harm; the absence of an alternative remedy; and the
balance of convenience. I should also
consider whether the applicant
has established grounds for the matter to be heard on an urgent basis
as set out in rule 8.
The relief sought
[18] The applicant has framed the relief he seeks in the form of a
rule
nisi
asking for the disciplinary hearing to be halted. He
initially styled it as an application to review and set aside the
decisions
of the chairperson and the disciplinary hearing as a whole,
coupled with a mandatory order “that the charges against the
applicant be quashed.”
[19] Mr
Mene
, for the applicant, stated in oral argument that
the relief he sought was not in terms of s 158(1)(h) of the LRA, i.e.
to review
any decision taken by the state in its capacity as employer
– in this case, the Municipality. Instead, he argued in the
alternative
that the Municipality should be interdicted from
proceeding with the disciplinary hearing; and, in the further
alternative, that
the Municipality be ordered to provide the
applicant with the documents he had requested.
[20] Mr
Mene
’s argument was initially based squarely on
the judgment by Jones J in
Van Eyk v Minister of Correctional
Services.
6
In that case, the High Court reviewed the decision by the Department
of Correctional Services to proceed with a disciplinary hearing
and
declared that the disciplinary action “had fallen away”.
The matter was decided with reference to the LRA –
albeit not
to s 158(1)(h) – “read with the Promotion of
Administrative Justice Act 3 of 2000” (PAJA). It was
handed
down before the decision of the Constitutional Court in
Gcaba v
Minister of Safety & Security
7
that PAJA does not apply to employment and labour relationship
issues.
8
I doubt, after
Gcaba
, that
Van Eyk
is still good law.
In any event, though, in oral argument Mr
Mene
abandoned the
prayers for review and instead argued that the disciplinary
proceedings should be interdicted.
[21] The first question to be decided is whether the applicant has
made out a case for urgency as envisaged by rule 8(2).
Urgency
[22] The applicant was given notice of an investigation into his
alleged misconduct and suspended with pay more than a year ago,
on 23
April 2012. He has not challenged the suspension
9
or the pending disciplinary action during that year. Following a
complaint by a Mr Tollie, the Municipal Manager appointed forensic
consultants (ens forensics) to conduct an investigation. Given the
number of alleged contraventions and amounts involved, the forensic
investigation took some time, from June to November 2012. On 12
September 2012 the applicant withdrew an application to have his
suspension uplifted and tendered the Municipality’s costs. On
13 November 2012 the Municipality notified the applicant of
a
disciplinary hearing to commence on 20 November 2012. He did not
object to the hearing itself; instead, through his then attorney,
he
requested and was granted a postponement. On 5 December 2012 he
requested legal representation. The Municipality agreed, provided
that it would also use legal practitioners to act as chairperson and
initiator. In the first week of March 2013, the applicant’s
then attorneys agreed to the hearing date of 25 April 2013. On 8
March 2013 those attorneys withdrew. On 13 March 2013 the applicant’s
current attorney, Mr Mokhele, confirmed the hearing dates. Despite
numerous requests from Mr Venter, he did not raise any preliminary
points until the hearing commenced.
[23] The urgency that the applicant now claims is entirely
self-created. The matter should be struck from the roll for that
reason
alone. However, little purpose would be served if the matter
were to be re-enrolled on the opposed motion roll. I have heard full
argument from both parties – both of whom insisted that the
application be heard and that they did not need to file further
affidavits – and it would be in the interests of justice to
rule on the merits.
Prima facie right?
[24] The principle applicable to interdicting disciplinary
proceedings has been outlined by Tlaletsi JA in
Booysen v Minister
of Safety & Security
10
:
that is that such an intervention should be exercised in
exceptional cases only. Among the factors to be considered would be
whether
failure to intervene would lead to grave injustice or whether
justice might be attained by other means.
[25] In order to decide whether this is such an exceptional case, I
will consider the four complaints raised by the applicant,
together
with the test for urgent interim relief to be granted.
Delay
[26] The Municipality did not start the disciplinary hearing within
three months of the date upon which it became aware of the
alleged
misconduct. It could be argued that it did “proceed” with
the disciplinary process by appointing a forensic
consultant to
investigate the allegations and, once that had been done, to call the
applicant to a hearing in November 2012. However,
clause 6.3 of the
Disciplinary Code compels the employer to proceed with a
“disciplinary hearing” within three months.
That is
peremptory.
[27] The clause does allow for a relaxation of that time period,
though. It provides that:
“
Should
the employer fail to proceed within the period stipulated above and
still wish to pursue the matter, it shall apply for condonation
to
the relevant Division of the SALGBC.”
[28] The Municipality did apply for condonation to the SALGBC on 8
August 2012. Inexplicably, the bargaining council has to date
not
issued a ruling in that regard. However, on the same day, the
Municipal Manager wrote to the applicant’s first attorneys,
Horn & Van Rensburg, advising them of the application. On the
papers before me, he did not object.
[29] The fact that the SALGBC has not yet provided the parties with
its ruling, does not justify interdicting the disciplinary
hearing.
These are not exceptional circumstances. The Municipality did apply
for condonation and the applicant did not object until
eight months
later. It would not lead to grave injustice, were the hearing to
proceed. And in any event, justice could be obtained
by other means:
the applicant – who has been legally represented throughout –
could have opposed the application for
condonation before the
bargaining council and could have asked the council for an expedited
ruling. As matters stand, the bargaining
council is not a party to
these proceedings and I cannot order it to issue such a ruling; but I
would urge the parties before court
to approach the bargaining
council on an urgent basis and to request the ruling.
Legal representation
[30] In terms of the provisions of the Disciplinary Code, neither
party is entitled to legal representation. It is the applicant
who
sought, and was granted, such representation nevertheless, with the
proviso that what was good for the goose, was good for
the gander. It
does not lie in his mouth now, five months after he had done so, to
object to the fact that the Municipality has
also appointed legal
practitioners to act as chairman and initiator. There is nothing
exceptional about that appointment.
Complaint in writing
[31] Clause 6.1 of the disciplinary code provides that:
“
An
accusation of misconduct against an employee shall be brought in
writing before the municipal manager or his authorised representative
for investigation.”
[32] The employee complains that there was no complaint in writing.
In his answering affidavit, the municipality’s head of
corporate services, Mr Willem Boshoff, says that “an official
complaint was lodged to the accounting officer (the city
manager/municipal
manager) by a Mr Tollie and the accounting officer
subsequently referred the matter to consultants to conduct a forensic
investigation.”
He does not state whether this complaint was in
writing and the applicant did not reply.
[33] In these circumstances, it is not clear whether the applicant’s
complaint has merit. In any event, though, he has an
alternative
remedy. If his complaint is about procedural fairness, he can pursue
his remedies. In terms of the LRA after the disciplinary
hearing,
should he so wish. It is common cause that there was a complaint and
that it was investigated. If the question whether
the complaint was
in writing is important, it can be pursued in due course. It does not
constitute exceptional circumstances and
the continuation of the
disciplinary hearing will not lead to grave injustice.
Appointment of ens forensics
[34] The same considerations apply to the appointment of the forensic
consultants. It is common cause that the city manager appointed
those
consultants on recommendation from the municipality’s general
manager: anti-fraud and corruption that he deviate from
the
prescribed policy. Should the applicant consider this improper, he
can pursue it in due course. It does not render the disciplinary
hearing void.
Apprehension of irreparable harm?
[35] The only harm foreseen by the applicant is that he is “facing
serious charges, which could lead to my dismissal if I
am found
guilty.”
[36] That is the same harm that any employee may suffer if he is
guilty of misconduct and if he is subsequently dismissed. That
is why
the labour relations act sets out an extensive dispute resolution
procedure, as the Labour Appeal Court pointed out in
MEC for
Education, North West Provincial Government v Gradwell.
11
Any harm that he may suffer as a result of the outcome of the
disciplinary hearing will not be irreparable.
An alternative remedy?
[37] The employee has an alternative remedy. Should it be found that
it did commit the misconduct, and should the chairperson deem
dismissal to be a fair sanction, he can refer an unfair dismissal
dispute to the Bargaining Council. That is his remedy, as prescribed
by the LRA.
Balance of convenience
[38] In a subjective since, the balance of convenience may favour the
applicant. Seen objectively, though, and taking into account
the
interests of justice, the balance of convenience favours the
municipality. It is in the interests of not only the ratepayers
of
Bloemfontein, but the public interest generally, that the serious
allegations of misconduct against the applicant be pursued
expeditiously.
Conclusion
[39] The applicant has failed to make out a prima facie right to the
relief sought. He will not suffer any irreparable harm and
he has an
alternative remedy.
[40] However, one issue remains. The applicant has asked in the
alternative that, should the disciplinary hearing proceed, the
municipality be ordered to make certain documents available to him. I
now turn to that question.
Alternative relief: documents to be provided
[41] The applicant has requested certain documents that appear to be
directly relevant to the allegations against him. They included
a
tender document known as MD 43; proof of payment to a contractor,
Maluti Plant Hire; and a transcript of an interview between
him and
the forensic consultant, Mr Hein Strydom, on 19 July 2012.
[42] The municipality has indicated that it does not deem some of the
requested documents relevant, and that it does not have a
copy of the
MD 43 document. On the papers before me, the requested documents do
appear to be relevant. It would lead to unnecessary
delay if the
applicant had to refer a dispute to the CCMA in terms of section 16
of the LRA or the approach another court in terms
of the Promotion of
Access to Information Act in order to obtain these documents. In the
interests of justice and expeditious resolution
of the dispute, the
Municipality must make available such documents as are relevant and
in its possession.
Costs
[43] The applicant has been unsuccessful in his main claim. He has
been partially successful with regard to his alternative claim.
There
is still an ongoing relationship between the parties. Whether that
relationship will endure is dependent upon the outcome
of the current
disciplinary hearing. Taking into account all of these circumstances
that the principles of law and fairness, I
do not deem it prudent to
make a costs order at this stage.
Order
[44] I therefore make the following order:
44.1. The main application is dismissed.
44.2. The first respondent is ordered to make available to the
applicant those documents that he requested in his request for
further particulars, if those documents are in the possession of the
first respondent.
44.3. The order in paragraph 44.2 shall operate as an interim order
pending the return day on 13 June 2013, unless the parties
agree that
this order should be made final.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
BS Mene
Instructed by LM
Mokhele, Bloemfontein.
FIRST RESPONDENT:
P Venter
Instructed by Molifi
Thoabala, Bloemfontein.
1
It
was reported a few days ago that financial misconduct by public
service employees cost South Africa more than R930 million
in the
2011-12 financial year: N Maswanganyi, “Officials ‘let
off’ as public service theft nears R1 bn”,
Business
Day
2 May 2013.
2
Edward
Nathan Sonnenbergs.
3
Labour
Relations Act 66 of 1995
.
4
Act
2 of 2000.
5
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969 (2)
SA 256
(C ) at 267 A-F.
6
[2005]
6 BLLR 639
(EC).
7
2010
(1) SA 238 (CC)
8
Gcaba
(supra)
para [64].
9
The
applicant withdrew an earlier urgent application in this court to
have his suspension uplifted and tendered the Municipality’s
costs.
10
(2011)
32
ILJ
112 (LAC) para [54].
11
[2012]
8 BLLR 747
(LAC) para 46].