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[2015] ZALCJHB 92
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Tsietsi v City of Matlosana Local Municipality and Another (J404/15) [2015] ZALCJHB 92; [2015] 7 BLLR 749 (LC); (2015) 36 ILJ 2158 (LC) (13 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J404/15
DATE:
13 MARCH 2015
Reportable
In
the matter between:
MOTSEMME
ELIE
TSIETSI
.................................................................................................
Applicant
And
CITY
OF MATLOSANA LOCAL
MUNICIPALITY
................................................
First
Respondent
RAMAGAGA
SETH
(ADMINISTRATOR)
..........................................................
Second
Respondent
Date
heard: 5 March 2015
Delivered:
13 March 2015
Summary:
Precautionary suspension of municipal manager in terms of Regulation
6; requirements of letter of intended suspension;
the nature of the
suspension as precautionary as well as the limit to its duration
specified in the regulation must not be overlooked
determining
whether the regulation has been complied with.
JUDGMENT
RABKIN-NAICKER
J
[1] In this
urgent application the applicant, the municipal manager of the first
respondent (the municipality) seeks an order as
follows:
“
Declaring
the Applicant’s suspension to be invalid, unlawful and of no
legal force and effect and setting the same aside,
alternatively,
uplifting the Applicant’s suspension with immediate effect;
The
Respondents are directed to reinstate the Applicant with immediate
effect and to forthwith comply with the Applicant’s
contract of
employment and conditions of service;”
[2] The applicant
was appointed on the 22 February 2012 as Municipal Manager in terms
of Section 54A of the Local Government: Municipal
Systems Act, Act 32
of 2000 (the Systems Act). His terms and conditions of employment are
therefore subject to the Local Government:
Disciplinary Regulations
for Senior Managers
[1]
(the
Regulations).
[3] The
Municipality has been subjected to a provincial intervention as
contemplated by the provisions of Section 139(1)(b) of the
Constitution and was placed under administration. The second
respondent was appointed as administrator from the beginning of
February
2015. The applicant has sought to challenge the validity of
the said intervention and powers and appointment of the second
respondent
in the papers. I made it quite clear to Mr Scholtz,
attorney for the applicant, that I was not going make any findings in
relation
to these allegations as this court does not have
jurisdiction to do so.
[4] On the 9
February 2015, the applicant received a letter from second respondent
(precautionary suspension letter) informing him
of his intention to
invoke the provisions of Regulation 6, i.e. to place him on
precautionary suspension. The letter read as follows:
“
RE:
NOTICE OF INTENTION TO SUSPEND/YOURSELF
1.
The above matter refers.
2.
Kindly take notice that as the Administrator of City of Matlosana
Local Municipality, I have received allegations of serious
misconduct
against you, which allegations include but are not limited to
financial misconduct in your capacity as the Municipal
Manager of
City of Matlosana Local Municipality. I take the allegations in a
very serious light and I intend to institute an investigation
in
order to determine if the allegations are true or not.
3.
I have applied my mind to the allegations, the nature and seriousness
thereof, and I intend to invoke the provisions of the Municipal
Systems Act 32 of 2000 as amended, specifically clause 6(1) of its
regulations, to put you on precautionary suspension while conducting
investigations into the allegations of misconduct against you.
4.
However before I
finalise
the decision on
whether I should place you on precautionary suspension, I need to
obtain representations from you to inform me
if there are any reasons
why I should not suspend from duty while the investigations are
carried out.
5.
For you benefit and in order to afford you a fair opportunity to make
representations, I enlist the allegations that have been
made against
you below. The list may not be exhaustive and, as I indicated earlier
in this letter, the investigation may exonerate
you or it may lead to
more allegations being made against you. The allegations are:
5.1.
It is alleged that you have, in your capacity as Municipal Manager
and the accounting officer of the Municipality, appointed
some or all
of the following service providers and suppliers without following
the required supply chain management procedures:
5.1.1
HMIT Solutions
to provide meter reading services to the
Municipality;
5.1.2
Owamajola/Constructability 10 JV
to disconnect and reconnect
municipal services for defaulting consumers of such services;
5.1.3
SO Matshida Constructions for the supply and storage of illuminatin
paraffin;
5.1.4
Babatsho Construction and Projects 65 CC/Tigane Developers and
Property Administration JV to supply and deliver primus stoves
to the
indigent residents;
5.1.5
Godracias Trading Enterprises CC to supply and deliver of paraffin
lantern lamps to the indigent members of the society in
Matlosana;
5.1.6
Trifecta for debt collection services;
5.1.7
Sun Success Construction Projects CC for the upgrading of the
pavilion at the Alabama and Tigane stadiums.
Other
Financial Misconduct
5.2
In this regard it is alleged that you have made and/or authorized
advance payments to be made to service providers in breach
of the
Municipal Finance Management Act and associated Treasury Regulations.
Some of the irregular payments include the irregular
payments made to
Owamajola/Constructabilty for the services not yet rendered to the
Municipality.
5.3
It is also alleged that you have committed unauthorized expenditure
through variance through a process call Municipal Manager’s
resolution. The variances were not taken to Council for the financial
years 2010/2011 and 2013/2014;
5.4
Furthermore it is alleged that you have made irregular and/or
unauthorized payment to Quantana Transport Services, a service
provider that was not appointed properly by the Municipality
following its supply chain management processes.
Undeclared
conflict of interest
5.5
It is alleged that on or about 2012 you received a cash donation,
from a company rendering services to the Municipality. In
breach of
the regulations, you have failed to declare the donation received
from Lourens Attorneys.
6.
As a result of the above serious allegations misconduct against,
(sic) I am of the considered view that it will not be in the
best
interest of the Municipality that the investigations should be
conducted while you are present at the Municipality. It is
my view
that your presence in the Municipality might prejudice the
investigations in that you might interfere with the investigations
or
intimidate witnesses. You may also continue with the conduct that is
being complained of if you are allowed to continue in the
position of
accounting officer of the Municipality.
7.
In the circumstances, I intend to put you on precautionary suspension
with full benefits while pending finalization of the investigations
unless you provide me with good reasons why I should not do so.
8.
I therefore require you to provide me with written representations
within seven (7) days of receipt of this letter and provide
me with
written representations stating why I should not place you on
precautionary suspension, with full remuneration, pending
the
finalization of the investigations. Your written representations in
this regard should reach me by no later than Tuesday 18
February
2015.
9.
Should I not receive your representations as required, a final
decision on your possible suspension might be taken without the
benefit of your answers.”
[5] The applicant
approached his attorney and avers that he sought assistance on the
“extreme vagueness of the allegations
contained in the notice
of intention to place me on a precautionary suspension; and the
notice not reflecting any justification,
to which I could respond,
for removing me from office.” There followed a letter from his
attorney to the administrator which
inter alia
raised the
issue of the alleged invalidity of the Section 139(1)(b) process
which it was recorded may invalidate the appointment
of second
respondent. The balance of the letter is in the nature of a request
for further particulars, in order it is alleged for
the applicant to
make well informed representations. This request was not acceded to
as the second respondent recorded in a letter
that the information
being sought was the subject of investigations and as such further
details will not be furnished as it may
prejudice the investigations.
By 23 February 2015, no representations had been received from
applicant and he was put on precautionary
suspension.
[6] The attorney
for applicant also wrote a letter on 13 February 2015 regarding a
lock on the applicant’s office which was
preventing him gaining
entry and stating that this action constituted a
de facto
suspension. In reply, second respondent stated that: “please be
advised that there are currently forensic investigations
being
conducted the Municipality and further that your client is on leave
and as such, my office had to take measures to prevent
loss of
documents and uncontrollable access to the office. There has never
been any intention to deny your client access to the
office except
that he is on leave, it was expected that my office might be made
aware if he intends to access it, which access
shall not be
unreasonably denied”.
[7] The applicant
essentially disputes the legality of his suspension on the basis that
there has been lack of compliance with the
prescripts and procedures
contained within, and the purpose and intent of Regulation 6 which
reads:
'6
Precautionary suspension
(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 sub-regulation (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.'
[8] Applicant
avers that the second respondent did not provide any explanation for
his belief that he may prejudice the investigations
and that the
precautionary suspension letter essentially does not disclose any
reason as to why a precautionary suspension may
be warranted.
He concedes that one or more of the allegations of misconduct in the
letter prima facie reflect allegations
of misconduct. He avers that
the purpose of the regulation is to afford him an opportunity to
answer to these allegations and states
that:
“
I
am however entitled to make use of the opportunity to show that the
allegations have no prospects and with the aim of avoiding
a
suspension. It was impossible for me to do so, given the vagueness of
these allegations.”
[9] In the
answering papers, the second respondent reflects the view that
applicant took a decision not to avail himself of the
opportunity to
answer the allegations contained in the precautionary suspension
letter, which were which were furnished with
sufficient
particularity, and as a result he is the author of his own
misfortune. Argument submitted on applicant’s behalf
latched
onto the fact that certain of the content of the regulation were
repeated verbatim in the letter of 9 February. It was
also argued by
Mr Scholtz that the vagueness and or lack of particularity in which
second respondent set forth the allegations
of misconduct in the
letter under question, being the first requirement in terms of
sub-regulation 1 and the justification for
suspension, being the
second requirement, barred the Applicant from making well informed
representations to the respondents. Further,
he submits that no
motivation or foundation is given for the respondents reason to
believe that applicant’s continued presence
in the workplace
may result in the matters set out in Regulation 6(1)(a)(i) and (ii).
[10] Applicant
placed reliance
inter
alia
on the case of
Lebu
v Maquassi Hills Local Municipality & others (2)
[2]
.
In that case Van Niekerk J had this to say about Regulation 6:
“
[16]
The procedure relevant to the suspension of a senior manager in terms
of regulation 6 can be summarized as follows:
(a)
A municipality is entitled to suspend a senior manager on full pay,
if it reasonably believes that a senior manager has committed
an act
of serious misconduct.
(b)
The municipality must have reason to believe that the continued
presence of the senior manager at the workplace will either
jeopardize any investigation into the alleged misconduct, or endanger
the well being or safety of any person or municipal property.
It will also be sufficient that the municipality believes that the
manager's continued presence in the workplace will be detrimental
to
stability in the municipality, or that the manager may interfere with
potential witnesses, or commit further acts of misconduct.
The
purpose of any suspension must be rational, and a municipality must
be in a position to establish the reasonableness of its
belief.
(c)
A municipality may do no more than take a decision in principle,
before affording the affected senior manager at least seven
days'
notice of its intention to suspend him or her. 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.……”
[11] Reference
was also made to an unreported judgment in which Steenkamp J stated
that in explaining the municipality’s apprehension
that an
employee might jeopardize an investigation that repetition of the
words of the Regulation is not enough but that a basis
for these
fears has to be set out “i.e. why they had reason to believe
that the applicant’s presence at the workplace
may lead to any
of these consequences”
[3]
[12] In my
judgment the above authorities on which applicant relies, should
not
be understood to amount to the following two propositions:
12.1
that the particularity of the allegations of misconduct must be of
such detail as to allow for the setting out of a defence
in response
thereto in the applicable representations in terms of Regulation 6.
Or as applicant averred to: “show that the
allegations have no
prospects.” This is because the suspension in terms of the
Regulation is precautionary, and resorted
to in order for an
investigation to take place as to whether charges should follow, and
not a disciplinary sanction in its own
terms.
12.2
that a municipality must set forth
evidence
to show that the
person involved may interfere in the conduct of the investigation
against him or herself. Reference to the position
of the senior
official and the attendant powers and responsibilities that he or she
has, read with the allegations of misconduct
as set out in the
pre-suspension letter, should suffice.
[13] In dealing
with Regulation 6(1) it is important not to lose sight of the
principle that the suspension is precautionary and
not punitive, and
it contains a safeguard that the suspension may not be extended
indefinitely. In this regard the LAC judgment
in
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[4]
is instructive. That matter dealt with precautionary suspension in
terms of the SMS Handbook in the Public Service. The court per
Murphy
AJA stated that:
“
[44]
The proposition that all suspensions should be procedurally fair to
avoid the stigma of an unfair labour practice, on the other
hand,
requires some qualification. Fairness by its nature is flexible.
Ultimately, procedural fairness depends in each case upon
the
weighing and balancing of a range of factors including the nature of
the decision, the rights, interests and expectations affected
by it,
the circumstances in which it is made, and the consequences resulting
from it. When dealing with a holding operation suspension,
as opposed
to a suspension as a disciplinary sanction, the right to a hearing,
or more accurately the standard of procedural fairness,
may
legitimately be attenuated, for three principal reasons. Firstly, as
in the present case, precautionary suspensions tend to
be on full pay
with the consequence that the prejudice flowing from the action is
significantly contained and minimized. Secondly,
the period of
suspension often will be (or at least should be) for a limited
duration. The SMS Handbook for example imposes a 60-day
limitation.
And, thirdly, the purpose of the suspension - the protection of the
integrity of the investigation into the alleged
misconduct - risks
being undermined by a requirement of an in-depth preliminary
investigation. Provided the safeguards of no loss
of remuneration and
a limited period of operation are in place, the balance of
convenience in most instances will favour the employer.
Therefore, an
opportunity to make written representations showing cause why a
precautionary suspension should not be implemented
will ordinarily be
acceptable and adequate compliance with the requirements of
procedural fairness.”
[14] In this
application, the case made for the applicant seeks to have
allegations of misconduct contained in the precautionary
suspension
letter presented in such detail so that he can virtually plead in
relation thereto. As the second respondent pointed
out, the nature of
the information sought by applicant through his attorney’s
request for further particulars, in order to
make his
representations, may actually prejudice the investigation if
provided.
[15] In view of
the above, I am quite satisfied that the precautionary suspension
letter recorded above meets the requirements of
section 6(1) of the
Regulations. The LAC
Gradwell
judgment cautions us not to
forget the purpose of precautionary suspension nor overlook
safeguards contained in prescripts
such as Regulation 6. The
jurisprudence of this court in these matters should not be read as
setting the bar so high that the duty
to investigate alleged
financial irregularities by accounting officers in municipalities is
rendered near impossible to carry out.
For all the above reasons, I
make the following order:
Order
1. The
application is dismissed with costs.
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Mr W Scholtz of Scholtz Attorneys
Respondents:
Adv B Hitchens instructed by Waks Silent Inc
[1]
Promulgated
under GN344 in GG 3143 of 21 April 2011
[2]
(2012)
33 ILJ 653 (LC)
[3]
Nothnagel
v Karoo Hoogland Municipality and others
C431/12
[4]
(2012) 33 ILJ 2033 (LAC)