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[2015] ZALCJHB 109
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Mashabane v MEC for Provincial Department of Health Mpumalanga (J567/2015) [2015] ZALCJHB 109 (25 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J567/2015
DATE:
25 MARCH 2015
Not Reportable
PETER
KENETANI
MASHABANE
......................................................................................
Applicant
And
MEC
FOR PROVINCIAL DEPARTMENT OF HEALTH:
MPUMALANGA
...................................................................................................................
Respondent
Heard:
24 March 2015
Delivered:
25 March 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an opposed urgent application in terms of which the Applicant
seeks a declaratory order that his suspension is unlawful,
alternatively, that the suspension be lifted, or alternatively that
the suspension be set aside and he be permitted to return to
work.
[2]
This application turns solely on the issue whether it is urgent or
not.
The background:
[3]
On 2 May 2014, the Applicant was appointed by the Department as
Deputy Director: Finance Management and stationed at the Ermelo
Regional Hospital. His responsibilities included being responsible
for supply chain management and managing finances.
[4]
On 30 November 2014 the Applicant was appointed as Acting Chief
Executive Officer of the Ermelo Regional Hospital. The appointment
took effect from 1 December 2014. The Department on 12 January 2015
further confirmed this appointment.
[5]
On 10 February 2015, the Applicant was issued with a letter of
suspension. In the letter, the Applicant was informed that the
suspension was as a consequence of allegations pertaining to his act
or omission of authorising, or causing to be authorised, the
procurement of goods for the Hospital with a service provider whom
the Department did not have a service level agreement for such
purposes, contrary to prevailing supply chain procedures.
[6]
The basis for contending that the application was not urgent was that
the Applicant had approached the Court on an urgent basis
on 16 March
2015, some 34 days after his suspension, and that no explanation was
proffered for the delay in approaching the Court.
The
legal framework- re: Jurisdiction and Urgency:
[7]
Emanating from the Labour Appeal Court decisions in
Booysen
v Minister of Safety and Security and Others
[1]
and
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[2]
,
it is now accepted that this Court has the requisite jurisdiction to
entertain urgent applications specifically relating to the
challenge
of suspensions which employees deem to be unlawful. In
Gradwell
however, the LAC had placed emphasis on the proviso that the court’s
intervention should only be permissible in cases of
extraordinary
or compellingly urgent circumstances
[3]
.
In
Booysens
,
the LAC also held that the intervention of the court is permissible,
but only in
exceptional
cases
[4]
.
As to what constitutes
extraordinary,
compelling
or
exceptional
circumstances
is ordinarily determined by the facts of each case.
[8]
The Respondent in the light of the provisions of section 158 (1) (4)
of the Labour Relations Act and the principles set out
in
Booysen
had not persisted with its challenge that the Court lacked
jurisdiction to determine the application, and as
already
indicated, the primary attack on the application was on the basis of
urgency.
[9]
Rule
8 of the Rules of this Court
[5]
deals with urgent applications, and requires an applicant to provide
cogent reasons why the matter is urgent and why the rules
of this
Court have not been complied with
[6]
.
Whether a matter is urgent involves two considerations. The first is
whether the reasons that make the matter urgent have been
set out,
and secondly whether the Applicant seeking relief will not obtain
substantial relief at a later stage.
[10]
I
t
is equally trite that an Applicant is not entitled to rely on urgency
that is self-created when seeking a deviation from the rules
[7]
.
In
National
Police Service Union and others v National Negotiating Forum and
others
[8]
,
this
court held the view that the latitude extended to parties to dispense
with the rules of the court in circumstances of urgency
is not be
available to parties who are dilatory to the point where their very
inactivity is the cause of the harm on which they
rely on to seek
relief.
The
submissions and evaluation:
[11]
In submitting that the application should
be treated as urgent, the Applicant averred that upon perusing the
letter of suspension
issued to him on 10 February 2015, he had
realised that the letter purported to suspend him from his duties as
a Deputy Director:
Finance Management, whereas he was at that stage
no longer occupying his former position but was now the acting CEO of
the Ermelo
Regional Hospital. He had then brought the matter to the
attention of the Chief Director and the Assistant Director of Labour
Relations
who had issued the letter to him, and was advised that the
letter would be sent to the Department to be rectified.
[12]
Other than leaving the matter in the hands of the two above-mentioned
officials, the Applicant had also made enquiries with
the Head of the
Department and was informed that the letter would be rectified. On 16
February 2015 he had then engaged the Chief
Director to have the
letter rectified, and also directly contacted the respondent by way
of “sms” about the matter.
[13]
According to the Applicant, he sought clarity as to whether he was
being suspended as acting CEO or not as he was no longer
in the
position of Deputy Director, and only once his position was clarified
could he consider his legal options. On 20 February
2015 he had
realised that the issue was not being resolved, and had then
approached his attorneys of record on 25 February 2015.
[14]
As the Applicant did not have clarity on the matter and was also not
in possession of a copy, he received a copy on 26 February
2015, and
only issued instructions to his attorneys of record to proceed with
this application on 27 February 2015 after being
re-issued with the
letter. His attorneys had then sent correspondence to the Respondent
on 2 March 2015 to demand
inter alia
, that the letter of
suspension be withdrawn. No response was received to the
correspondence and only on 11 March 2015 was the application
drafted.
[15]
A further basis for contending that the matter was urgent was that
currently the position of CEO of the Ermelo Regional Hospital
was
vacant and was advertised in December 2014, and he had applied for
the position. He contended that he could however not be
considered
for the position because of his suspension. Furthermore, the matter
was urgent since even though he was suspended with
emoluments, he was
only being paid a salary of a Deputy Director whereas his position of
acting CEO was still valid. He was thus
not being paid a salary of
acting CEO and it was apparent that his suspension was merely
punitive in nature.
[16]
The Respondent’s contention was that the Applicant had failed
to set out explicitly the circumstances, which rendered
the matter
urgent and had made no attempts to comply with the requirements of
Rule 8 (2) (a) of the Rules of this Court. In this
regard, it was
pointed out that having received and perused the letter of suspension
issued on 10 February 2015, the Applicant
had refused to sign for it
and was aware that he was suspended in his capacity as Deputy
Director. He had complied with the contents
of the letter by handing
in the keys to his office and the laptop issued to him. Furthermore,
he did not report for duty after
being suspended on 10 February 2015,
and had only launched this application on 16 March 2015.
Evaluation:
[17]
It is trite that in demonstrating urgency, it is required of an
applicant to indicate what steps he or she took on an urgent
basis in
dealing with the circumstances from which the urgency emanated. In
this case, and as correctly pointed out on behalf of
the Respondent,
the Applicant has not demonstrated in explicit terms on what basis
this court should intervene on an urgent basis,
and it is apparent
that he was dilatory in dealing with his suspension. No basis has
been laid to show why the Applicant should
be allowed to dispense
with the normal Rules of this Court, nor has he convinced the Court
that there are ‘
extraordinary, compelling or exceptional
’
circumstances that require its urgent intervention. These conclusions
are fortified by the following considerations;
17.1 It was common
cause that the Applicant was issued with a letter of suspension on 10
February 2015, which letter was addressed
to him in his official
permanent capacity as Deputy Director;
17.2 After
hesitation, Mr Nsibande on behalf of the Applicant had conceded that
from the letter of suspension, it was apparent that
the Applicant was
suspended in his capacity as Deputy Director, in view of the
allegations levelled against him;
17.3 It therefore
follows that the contention that the Applicant was seeking
clarification as to whether he was suspended in his
capacity as
Deputy Director or as acting CEO is mere red- herring in that a copy
of the very same letter he was waiting for clarification
on was
re-issued to him on 26 February 2015 without any changes;
17.4 Despite
alleging to seek clarification on the matter the Applicant had
nevertheless acted on the contents of the letter by
vacating his
office and not reporting for duty. It is clear therefore that the
fact of his suspension could not have been in doubt,
and he was
clearly aware as of 10 February 2015 that he was officially on
suspension;
17.5 The period
between 10 and 26 February 2015 is unaccounted for, and if there is
any inclination to hold otherwise, no specifics
were provided in that
regard to show that the matter was being treated as urgent by the
Applicant;
17.6 The attorneys
of record were instructed on 27 February 2015 on the Applicant’s
version and there is no explanation as
to the reason it took from
that period until 16 March 2015 when this application was launched;
17.7 The fact that
the attorneys of record had sent a letter of demand to the Respondent
on 2 March 2015 is neither here nor there
as it was already some 20
days since the suspension took effect. Notwithstanding the fact that
there was no response forthcoming,
only on 11 March 2015 were the
attorneys issued with instructions to proceed with the drafting of
the application, which was filed
some five days later. Still there is
no explanation for the reason it took that long to finally launch
this ‘urgent’
application;
17.8 The contention
that the application is urgent because the Applicant was suspended
and that this may jeopardise his chances
of being permanently
appointed to the position of CEO as advertised cannot the basis of
urgency. This is so in that for all intents
and purposes, that
position should be allocated to individuals whose integrity is
untainted. In the light of the current allegations
against the
Applicant, his integrity remains tainted until after the
investigations in respect of the allegations are completed.
The Court
cannot intervene in circumstances where the Applicant simply wishes
to advance his career at the expense of clean governance;
[18]
It cannot be re-emphasised enough that if an applicant seeks to have
a matter treated as urgent, there is a need to demonstrate
that the
matter was indeed treated with urgency by him from the commencement
of the cause of the urgency. It has often been repeated
in this Court
that urgency is not there for asking, and it is not for the
applicants to decide when a matter is urgent. Where
an
application does not satisfy the requirements of urgency, it follows
that the urgency should be deemed to be self-created, and
that
application should not be deserving of the Court’s urgent
attention.
[19]
A further concern that has been raised continually in this court
relates to urgent applications pertaining to suspensions of
employees. This court is inundated with such applications, which
should never in the first place have come before it. Parties need
to
be reminded of what was said in
Gradwell
[9]
by the Labour Appeal Court when dealing with the issues surrounding a
referral of suspension disputes;
“
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA.
The respondent in this case instead sought a
declaratory order from the Labour Court in terms of s 158(1)(a)(iv)
of the LRA to the
effect that the suspension was unfair, unlawful and
unconstitutional. A declaratory order will normally be regarded as
inappropriate
where the Applicant has access to alternative remedies,
such as those available under the unfair labour practice
jurisdiction.
A final declaration of unlawfulness on the grounds of
unfairness will rarely be easy or prudent in motion proceedings. The
determination
of the unfairness of a suspension will usually be
better accomplished in arbitration proceedings, except perhaps in
extraordinary
or compellingly urgent circumstances. When the
suspension carries with it a reasonable apprehension of irreparable
harm, then,
more often than not, the appropriate remedy for an
Applicant will be to seek an order granting urgent interim relief
pending the
outcome of the unfair labour practice proceedings.”
[20]
The Applicant therefore has alternative remedies available to him. In
the light of the above considerations and authorities
cited, there is
no basis in this case as to the reason the Applicant should be
allowed to jump the litigation queue and get special
treatment. He
has dismally failed to demonstrate why this application is urgent,
nor has he demonstrated any compelling reasons
why the Court should
intervene. Like all other employees who feel hard done by with
suspensions, whether fair or not, he should
follow the dispute
resolution procedures set out in the LRA and wait for his turn. In
the light of these factors, the matter should
accordingly be struck
off the roll. Further in the light of the ill-conceived nature of
this application, considerations of law
and fairness dictate that the
Applicant should be burdened with the costs of this application.
Order:
i.
The application is struck off the roll on
account of lack of urgency.
ii.
The applicant is ordered to pay the costs
of this application.
Tlhotlhalemaje,
AJ
Acting Judge of
the Labour Court of South Africa
Appearances:
For
the Applicant: Mr. VM Nsibande of TMN Kgomo & Associates Inc
For
the Respondent: Adv. M Kgatla
Instructed
by: State Attorney
[1]
(2011) 32 ILJ 112 (LAC) at para 54.
[2]
(2012) 33 ILJ 2033 (LAC).
[3]
Id at para 46
[4]
Id
at
para 54
[5]
Which
provide that;
“
(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 ...”
[6]
Clause 12.5 of the Practice manual of the Labour Court equally
obliges an Applicant to set out explicitly the circumstances which
render the matter urgent
[7]
J
iba
v Minister: Department of Justice and Constitutional Development and
Others
(2010) 31 ILJ 112 (LC) at para 18.
[8]
(1999)
20 ILJ 1081 (LC) para [39]
[9]
[2012]
8 BLLR 747
(LAC) at para 46