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[2014] ZALCJHB 28
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South African Municipal Workers Union obo Nkuna v Enhlanzeni District Municipality and Another (J272/14) [2014] ZALCJHB 28 (11 February 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J 272/14
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
Obo
DAN NKUNA
….....................................................................
Applicant
and
ENHLANZENI
DISTRICT MUNICIPALITY
........................
First
Respondent
GERHARD
BOTHA NO
...............................................
Second
Respondent
Heard:
11 February 2014
Delivered:
13 February 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The applicants brought this application before the court on an urgent
basis to seek an order in the following terms;
1.1 That thee First
Respondent be interdicted and restrained from continuing with the
disciplinary hearing against Dan Nkuna, pending
the Respondent
obtaining condonation from the South African Local Government
Bargaining Council (SALGBC) for the late commencement
with the
disciplinary hearing contrary to the period stated in clause 6.3 and
annexure B: Item 7 of the main Collective agreement:
Disciplinary
code and procedure.
1.2 Alternatively, that
the Respondent be interdicted and restrained from commencing with the
disciplinary hearing against Dan Nkuna,
pending compliance with
clause 6.11 of the Main Collective agreement: Disciplinary Code and
Procedure, by firstly seeking the applicants’
consent to the
amendment of the time period and duration for the commencement and
finalisation of the disciplinary hearing and/or
by applying to the
chairperson of the disciplinary hearing for amendment of the time
period and duration for the commencement and
finalisation of the
hearing.
Background
to the application:
[2]
Nkuna is employed by the First Respondent (Municipality) as a Chief
Environmental Health Practitioner. On 25 July 2013 he was
served with
a notice to attend a disciplinary enquiry to answer to two
allegations of misconduct. These related to his alleged
failure or
refusal to participate in the Individual Performance Management
System, and also a refusal or failure to obey a lawful
instruction.
On 2 August 2013, the scheduled disciplinary enquiry was postponed.
On the Applicants’ version, there was no
reason to postpone the
enquiry and since that postponement, the enquiry never proceeded
until Nkuna was informed that the enquiry
would proceed on 30 January
2014.
[3]
On 30 January 2014 when the disciplinary enquiry was scheduled to
commence, the Applicants had raised a point
in limine
to the
effect that the disciplinary enquiry was convened irregularly and
contrary to the provisions of clauses 6.3; 6.10 and 6.11
and annexure
B: Item 7 of the Main Collective Agreement (The Main Agreement). The
Second Respondent, who was the appointed chairperson
of the enquiry
had afforded the parties an opportunity to file their written
submissions in respect of the points
in limine
by the next
day, which they had done. The Chairperson had delivered his ruling on
31 January 2014 in terms of which he had ordered
that the
disciplinary enquiry should proceed on 12 and 13 February 2014. It
does not appear from the ruling that the Chairperson
had addressed
the points
in limine
raised.
[4]
Having had regard to the above, and in bringing this application
before the Court, the Applicants contended that since Nkuna
was
served with a notice of enquiry in July 2013, and since the hearing
scheduled for 2 August 2013 did not commence on that date,
and only
for it to proceed on 30 January 2014, the Municipality had violated
clause 6. 3, 6.10 and 6.11 of the collective agreement
in that a
reasonable period had elapsed from the time that the initial notice
and the charge sheet were served on Nkuna. It was
contended that the
Municipality had failed to ensure that the hearing took place not
earlier than five (5) days and not later than
15 (15) days from the
date of service of the notice of misconduct as contemplated in clause
6.10 of the main agreement. To this
end, it was contended that the
Municipality should follow the provisions of clause 6.3 by
approaching the SALGBC to seek condonation
for non-compliance with
the provisions of clause 6.10 of the agreement, before it can
re-schedule the disciplinary enquiry.
The
Respondents’ response:
[5]
According to Hugh Mbatha, the Municipal Manager, the dispute arose
after Nkuna and eight other employees were charged with various
acts
of misconduct. The disciplinary enquiry had proceeded on 2 August
2013 as scheduled and was postponed to 14, 15 and 16 August
2013. The
enquiry however did not proceed on those dates and was re-scheduled
for 29 August 2013. It had further taken place
in October and
November 2013 at which point the Municipality witnesses had
testified. The enquiry was again scheduled to proceed
on 9 December
2013. On 6 December 2013, SAMWU had brought an urgent application on
behalf of Nkuna and eight others to interdict
the continuation of the
hearing. That matter was settled under case number J279/13, which
settlement agreement was made an order
of Court.
[6]
Mbatha further contended that if the Municipality had not complied
with the provisions of the collective agreement as alleged,
the
applicants had an alternative remedy and could have approached the
SALGBC. It was further contended that this application was
not
urgent, was an abuse or the court process, and that the applicants
had not established the basis upon which the Court could
interfere
with the disciplinary hearing. Nkuna had according to Mbatha, pleaded
in the disciplinary enquiry, and it was not correct
that the enquiry
had not proceeded as alleged.
Evaluation:
[7]
The powers of this court to grant urgent interim relief and
interdicts derive from the provisions of section 158 (a) (i) and
(ii)
of the Act. The Labour Appeal Court in
Booysen
v Minister of Safety and Security and Others
[1]
explained the powers of this court in terms of these provisions in
the following terms;
“…
The
Labour Court has jurisdiction to interdict any unfair conduct
“including disciplinary action”. However such an
intervention should be exercised in exceptional cases. It is not
appropriate to set out the test. It should be left to the discretion
of the Labour Court to exercise such powers having regard to the fact
of each case. Among the factors to be considered would in
my view be
whether the failure to intervene would lead to grave injustice or
whether justice might be attained by other means.
The list is not
exhaustive”.
[8]
It was common cause that the Applicants had initially brought an
urgent application before this Court under case number J 2794/13
wherein an order was sought to interdict the Second Respondent in the
present matter from continuing to be the Chairperson of the
disciplinary enquiry. In that matter, the Applicants were cited as
SAMWU obo Nkuna & 8 others. Wycliff Mabusela, who had deposed
to
the Applicants’ replying affidavit in this matter had averred
that the relief that the Applicants sought in previous matter
did not
directly relate to Nkuna as he had not entered a plea at the
disciplinary enquiry. In my view, this contention is clearly
disingenuous in that there is no indication that Nkuna was in any
form or manner excluded from the provisions of that settlement
agreement which was made an order of Court. If this was the intention
of the parties, provisions would have specifically been made
in that
settlement agreement.
[9]
Nkuna and others were charged with similar forms of misconduct on or
about 25 July 2013. The disciplinary enquiry was initially
scheduled
for 2 August 2013 but was postponed. Further postponements occurred
in August 2013 and the matter was set-down for 29
August 2013. As
appears from an affidavit deposed to by Kennedy Nkosi, a SAMWU
shop-steward in the matter under case number J2794/13,
Nkuna took
compulsory leave between 26 August and 24 September 2013. When the
disciplinary hearing commenced on 29 August 2013,
the case against
Nkuna was separated from the others due to his absence. Nkosi further
confirmed that at the hearing of 29 August
2013, the Municipality had
called three witnesses to testify on its behalf and the matter was
part-heard.
[10]
On 10 October 2013, the Municipality had closed its case. Nkuna was
present in that hearing and a request was made on his behalf
that he
should enter his plea and that all the other witnesses that had
already testified should be recalled for his benefit. According
to
Nkosi, the Chairperson of the enquiry (Second Respondent) had not
acceded to the request. In the light of the Chairperson’s
response, SAMWU had continued with the evidence of Nkuna under
protest. Nkuna had led his evidence, was cross-examined and
re-examined
[2]
. In the light of
Nkosi’s averments, I fail to appreciate the reason Mabusela in
his founding and replying affidavits would
consistently and
vigorously deny that the disciplinary enquiry against Nkuna had not
commenced. The fact that Nkuna had not entered
a plea does not imply
that the enquiry had not commenced. In fact, as a disciplinary
enquiry should not be conducted in the mould
of criminal proceedings,
the entering of a plea is not even a requirement. All that is needed
is for the employer to spell out
and clarify the charges preferred
against an employee, and for the employee to be afforded an
opportunity to respond to those charges.
[11]
Clause 6.3 of Main Collective Agreement, upon which the Applicants
heavily relied in bring this application provides as follows;
The Employer shall
proceed forthwith or as soon as reasonably possible with a
Disciplinary Hearing but in any event, no 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
Mr.
Venter on behalf of the Applicants had submitted that the operative
word in the above clause was “proceed” and that
as Nkuna
had not entered a plea at the disciplinary enquiry, that enquiry
could not have “proceeded” for the purposes
of compliance
with that clause. However, in the light of the conclusions reached
above flowing from Nkosi’s averments, it
is apparent that
clause 6.3 is of no relevance, and does not come to the assistance of
the Applicants. Even if it could be argued
that not much weight
should be attached to Nkosi’s averments to the extent that
Nkuna had not entered a plea, it is clear
from the plain reading of
that clause that a disciplinary enquiry must be instituted within
three months from the date upon which
the Employer became aware of
the misconduct.
[12]
The Applicants’ case that the Municipality did not act in
compliance with clause 6.3 cannot be sustainable in view of
the
sequence of events. As already indicated, Nkuna and others were
charged on 25 July 2013 and an enquiry was scheduled for 2
August
2013. The misconduct in question took place in May and July 2013, and
the enquiry was scheduled for 2 August 2913. It was
not the case of
the Applicants that there was a delay between the occurrence of the
misconduct and the issuing of the notice of
misconduct. Their
complaint was that there was a delay between the postponement on 2
August 2013 and the re-scheduling of the matter
on 30 January 2014.
The Applicants however failed to take into account that had Nkuna not
taken compulsory leave in the middle
of the disciplinary enquiry, his
matter would not have been separated from the other employees. It is
therefore strange that the
Applicants would complain about the delay
in respect of Nkuna and allege non-compliance with the provisions of
the main agreement,
when the same complaint is not made in respect of
the other eight employees whose disciplinary enquiry similarly took
long.
[13]
The Applicants by bringing this application not only failed to take
the Court in its confidence but also abused the court process
and
were clearly opportunistic. These conclusions are based on the
following considerations. On Mabusela’s version,
since 2 August
2013, and until 30 January 2014, the enquiry had not proceeded. On
Nkosi’s version however, the enquiry where
Nkuna was present
and had participated had taken place on 10 October 2013. It is
strange that Nkosi and Mabusela would contradict
each other on such a
crucial issue to their case. In my view, it is at the point of this
contradiction that the Applicants’
case should fall flat. The
Court should thus take a dim view of the Applicants’ approach
to this matter. Furthermore, it
is apparent that in bringing this
application, the Applicants had with a clear intention to either
stall the disciplinary enquiry
or to completely avoid it,
deliberately chosen to misinterpret the provisions of clause 6.3. of
the main agreement. The provisions
of clauses 6.10 and 6.11 are not
even pertinent to this case for consideration by this Court. In the
end, there is nothing exceptional
about this application that would
necessitate the intervention of the Court. As submitted on behalf of
the Respondents, the nature
of complaints that the Applicants have in
respect of the disciplinary enquiry are procedural in nature, and
disputes in that regard
should be referred to the SALGBC. In the end,
the Court should not have been burdened with this application.
Urgency:
[14]
Notwithstanding the conclusions above, and further for the sake of
completeness, I will deal with the question whether this
application
deserves to be treated with urgency. Urgent applications are dealt
with in terms of Rule 8 of the Rules for the Conduct
of proceedings
in the Labour Court which provide that;
“
(1)
A party that applies for urgent relief must file an application that
complies with the requirements of rules7(1), 7(2), 7(3)
and, if
applicable, 7(7).
(2)
The affidavit in support of the application must also contain-
(a)
the reasons for urgency and why urgent relief is necessary;
(b)
the reasons why the requirements of the rules were not complied with,
if that is the case; and
(c)
if a party brings an application in a shorter period than that
provided for in terms of section 68(2) of the Act, the party
must
provide reasons why a shorter period of notice should be permitted”.
[15]
The Labour Appeal Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[3]
explained the requirements of Rule 8 as follows;
“
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and the degree to which
the
ordinary applicable rules should be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant is
not
entitled to rely on urgency that is self-created when seeking
deviation from the rules”.
[16]
It follows that an applicant seeking urgent interim relief must
adequately and in detail, set out in his or her founding affidavit
the reasons for the urgency. The basis for allowing parties to
dispense with the Rules of Court relating to time periods is to
prevent the occasioning of an injustice and involves the balancing of
this consideration with that of the rights of parties to
a considered
opportunity to place their cases before the court. (See
National
Police Services Union v National Commissioner of the National Police
Services and Others
[4]
).
As it was aptly put in
Vermaak
v Taung Local Municipality
[5]
;
“
The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a Court to be placed
in a
position where the Court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely to
happen. By way
of an example if the Court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date.
[17]
I have had regard to the parties’ submissions in regards to
whether the application should be treated as urgent or not.
Based on
the conclusions reached that the Applicants have clearly and
deliberately misconstrued and misinterpreted the provisions
of clause
6.3 for reasons already mentioned, it follows that the urgency which
they allege is clearly self-created. Furthermore,
the Applicants must
have known about the disciplinary hearing scheduled for 30 January
2014 in advance. At no stage until that
date did they raise any issue
about non-compliance with the provisions of the Main Agreement. It
was only when they had received
an unfavourable outcome on the “
point
in limine”
that they suddenly sought the intervention of
this Court. Urgency in my view cannot arise simply out of an adverse
finding in the
process of a disciplinary enquiry. In the
circumstances, and as already indicated, the urgency alleged is
clearly self-created,
and this application is an abuse of the court
process.
[18]
The complaints raised by the Applicants in respect of the
disciplinary enquiry are merely procedural in nature, and they
clearly
have substantial remedy and redress in the SALGBC. There is
no basis upon which the Court should conclude that if the matter is
not treated as urgent, Nkuna will suffer irreparable harm. He should
and must be subjected to a disciplinary enquiry like other
employees.
The circumstances surrounding the Applicants’ complaints
regarding the disciplinary enquiry are not unique or
exceptional.
Employees on a daily basis invariably complain about the unprocedural
nature of disciplinary processes. Some employees
however do take part
in those supposedly unfair disciplinary enquiries under protest, wait
for the outcome and then challenge it
either at the CCMA or a
Bargaining Council. In this case however, Nkuna took part in the
enquiry under protest and before the enquiry
could be concluded, had
approached the Court for intervention. This conduct in my view
constitutes an abuse of the Court process
and should not be
countenanced.
Costs:
[19]
A cost order is made following upon considerations of law and
fairness. Throughout this judgment I have lamented the fact that
this
application was premised on a deliberate misinterpretation of clause
6.3 of the main agreement, was thus opportunistic and
an abuse of the
court process. Furthermore, there is no basis upon which the
application should be treated with urgency. I have
further considered
the fact that in approaching the Court with this application, the
Applicants failed to take it into its confidence
when regard is had
to averments made on behalf of the Applicants by Mabusela in
this case as against those made by Nkosi
in a matter involving the
same parties under case number J 2794/13. The Court should take a dim
view of such conduct and show its
displeasure through a punitive cost
order. To this end, the following order is made;
Order:
The
application is dismissed with costs on attorney and own client scale.
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicants: Adv Venter
Instructed
by: Maenetja Attorneys
For
the Respondents: Mr. S July of Werkmans Attorneys
[1]
(2011) 32 ILJ 112 (LAC) at para 54
[2]
See pages 63 to 65 of the Respondents’
answering affidavit.
[3]
2010 31 ILJ 112 at para 18
[4]
(1999) 20 ILJ 2408 (LC)
[5]
(JR315/13) [2013] ZALCJHB 43 (12 March 2013)