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[2015] ZALCJHB 172
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Ndou v Thulamela Municipality (J1011/15) [2015] ZALCJHB 172 (1 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Judgment
Case
No: J1011/15
DATE:
01 JUNE 2015
In the matter
between:
NDOU,
TSHIMANGADZO
SYLVIA
.....................................................................................
Applicant
And
THULAMELA
MUNICIPALITY
........................................................................................
Respondent
Heard
:
28 MAY 2015
Delivered
:
01 JUNE 2015
Summary:
(Urgent – suspension –
interdict - unlawfulness)
JUDGMENT
R
LAGRANGE, J
[1]
This is an application for interim relief
pending a final order in the matter. The applicant seeks an order
declaring her suspension
invalid, unlawful and of no legal force or
effect. The respondent municipality opposed the application and in
reply, the applicant
challenged the authority of the deponent to the
answering affidavit to represent the respondent in the proceedings
based on a resolution
adopted by the Council of the municipality on
19 May 2015.
Challenge
to the authority of the municipal manager to oppose the application
[2]
In her replying affidavit, the applicant
also challenged the authority of the acting municipal manager, Mr
Maluleke, to oppose the
application. The respondent argued that the
appropriate procedure for raising this special defence was by means
of an application
under rule 7(1) of the High Court rules. A
consequence of using that procedure is that because the objecting
party initiates the
application the respondent is entitled to file an
answer as of right. Where this is not done the party whose authority
is challenged
must seek leave to file a supplementary affidavit in
the main application. In a case like this, that application will only
be heard
on the day the main matter is set down for hearing. If leave
to file a supplementary affidavit is granted, that in turn may lead
to a delay while the objecting party files a reply, unless it waives
its right to do so.
[3]
I
was also referred to the judgment of Khumalo, AJ in
SAMWU
obo NEMO and Others v Mopani District Municipality
[1]
in
which, the learned judge relied on the authority of the judgement in
the matter of the
ANC
Umvoti Coucil Caucus and Others v Umvoti Municipality
[2]
in which the High Court adopted the approach in other judgements,
namely that once an attorney had been instructed, the challenge
should be to the attorney’s power to act on behalf of the party
and not to the deponent to the founding papers.
[4]
Whether or not that principle ought to
apply in this instance is not necessary for me to decide, but I am
satisfied that the applicant
ought to have followed the procedure set
out in rule 7 (1) rather than challenging the municipal manager’s
authority in reply
and accordingly, the challenge to his authority
should be dismissed.
Merits
of the application
[5]
The applicant bases her right to relief on
the principle of legality though she also makes reference to
unfairness as a consideration.
I do not intend to set out all the
facts contained in the affidavits, but will merely make reference to
some of them, namely:
5.1
The applicant is employed by the respondent
as a senior manager for community services.
5.2
In late November 2014 she was due to attend
a meeting held at Akganang local municipality and she completed a
travel and subsistence
form claiming payment of the alliances for
travelling 448 km to attend the meeting. Her claim for payment was
approved at the time.
5.3
In early April 2015 the municipal manager,
Mr Mathivha (‘Mathivha’) tabled a report before the
Council alleging that
the applicant had not attended the meeting in
November 2014 as she had claimed. The council resolved to appoint an
independent
investigator to look into the alleged misconduct by the
applicant.
5.4
Subsequent to this, on 28 April 2015, the
municipal manager himself and another senior manager were suspended
as a result of a judgement
obtained against the council.
5.5
It is common cause that members of a union,
the South African Municipal Workers Union (‘SAMWU’) began
a campaign demanding
the applicant’s dismissal ostensibly on
the grounds of the alleged misconduct she had committed. The
applicant believes that
Mathivha, who was being supported by the
union, had encouraged the union to pursue the demand for her
dismissal for two reasons.
Firstly, owing to his own suspension and
that of the other senior manager, he believed it would strengthen his
hand in his own
dispute with the Council if so many senior managers
were on suspension. The applicant believed that Mathivha was of the
view that
the Council might be compelled to recall him from
suspension because of the management deficit caused by the
suspensions. She also
believes that he wanted to prejudice her
application for appointment to another municipality. The interview
for that job is imminent.
The municipality does not deny that the
union was engaged in a ‘vicious campaign’ against her and
also does not deny
that Mathivha has the support of the union.
However, it insists that her suspension had nothing to do with
prejudicing her job
application and the reasons for her suspension
had everything to do with the pending disciplinary enquiry into the
attached allowance
fraud and nothing to do with the suspension of the
municipal manager and the other manager.
5.6
It appears that not only did members of the
union go on public radio claiming she had stolen money and made
fraudulent claims, but
a criminal case was also opened against her
arising from the alleged misconduct by the municipal manager.
5.7
The applicant was served with a letter of
notice of intention to suspend her on 30 April 2015. The notice makes
it clear that the
proposed precautionary suspension relates to the
alleged misconduct she committed which the council regarded as “very
serious”,
pending finalisation of the investigation against.
The letter then goes on to cite various reasons for the precautionary
suspension
including:
5.7.1
the instability caused in the workplace as
a result of the work stoppage demanding that action be taken against
her;
5.7.2
the council’s concerns about her
safety in the circumstances;
5.7.3
her access to records and documents
relevant to the investigations which she would have as a senior
manager and a concern that she
might tamper with such documents;
5.7.4
the fact that some of the potential
witnesses would include her subordinates and might feel intimidated
by her presence at work
during the investigations which could
compromise their cooperation with the investigators;
5.7.5
the possibility that she might interfere
with her subordinates and thereby hamper the investigation;
5.7.6
the investigation would look at the
procedures and systems in place when such travel claims are made and
how travel by officials
is monitored.
[6]
The applicant was afforded until 7 May 2015
to respond as to why she should not be suspended. On 5 May 2015 her
attorneys wrote
to the council asking for documentation appearing in
the police docket in the criminal case which had been opened against
her in
order to be able to respond to the notice. In light of the
lateness of the request, she also asked that the date for filing her
submission on the precautionary suspension be extended until 15 May
2015.
[7]
The municipality’s attorney replied
on 8 May 2015 stating that the municipality did not have the
documents in question and
agreeing to extend the time for her
submission to 12 May 2015. Despite requesting the extension and
having been granted a substantial
one, the applicant did make
extensive submissions on 7 May 2015 and did not supplement these
before 12 May 2015.
[8]
In her representations, the applicant
claimed that:
8.1
her suspension was an afterthought to
entice employees back to work and to appease the suspended municipal
manager;
8.2
item 32 (a) of the disciplinary code
requires her to be given a fair hearing by the municipal manager,
whereas she was being issued
with the letter alleging misconduct and
motivating her suspension without her side of the story being heard
first;
8.3
the charge against her was clearly spurious
as it would have been raised earlier , rather than four months after
the November trip;
8.4
the investigations were already complete;
8.5
the investigators report was only due
within thirty days of his appointment and until it had been
considered it was premature to
consider suspending her;
8.6
the terms of reference of the
investigator’s report concerned all managers and subordinates
and not just herself;
8.7
the Council had decided on 7 April that
there was no basis to charge her but had opted to review its
operational processes and systems
and accordingly ought to have
soaked that decision before taking the decision of 28 April 2050;
8.8
no violence or threats were made against
her while she was at work during the strike action;
8.9
she could not intimidate any potential
witnesses that she did not know who they were and did not have the
pertinent records in her
possession;
8.10
she could not hinder her subordinates from
assisting the investigator;
8.11
the fact that the suspended municipal
manager had already opened a fraud case with the release against her
shows that the council
had already decided she was guilty;
8.12
the disciplinary code requires an
allegation against a senior manager to be tabled in seven days of an
allegation of misconduct
being made against them. In terms of clause
5 (2) of the applicable Disciplinary Code.
[9]
Though the respondent admits that there was
no violence on the premises when the applicant was at work, the union
had raised questions
about her presence and the council had a
legitimate concern that it might be seen to be acting inconsistently
if she was not suspended
while other senior managers were. The
investigation report which was completed on 14 May 2015 indicated
that there was a basis
for charging the applicant which provided an
even stronger basis for her suspension continuing. The respondent
also denied that
it was necessary for it to conduct an informal
hearing before invoking the suspension procedure which it had done.
The respondent
argued that it was not necessary for it to have proof
that the applicant would interfere with witnesses who were
subordinates,
but the fact that they worked in her section was
sufficient reason to justify the suspension. The applicant points out
that on
the witness statements, there is a witness who supports a
version that she attended the meeting on 20 November 2014.
Evaluation
[10]
On the question of urgency, I am satisfied
that the applicant acted with reasonable expedition in challenging
her suspension and
as an unlawful suspension amounts to an ongoing
wrong, which cannot be addressed in the arbitration proceedings. I am
also mindful
of the impending interview the applicant has with
another municipality, which might be prejudiced by her current
status, and that
the respondent did have enough time to answer her
founding affidavit comprehensively. I am satisfied that the matter
was sufficiently
urgent to warrant it being heard.
[11]
In relation to the merits, having
considered the above, and having regard to the applicable
Disciplinary Code set out in regulations
in government Gazette number
34213 of 21 April 2011 I am satisfied that:
11.1
The applicant was not entitled to a hearing
before she was suspended. The procedure followed in suspending her
was specifically
intended to provide her with an opportunity to make
representations why she ought not to be suspended, which she did.
Where the
employer follows the procedure and there is no bad faith or
patent irrationality in arriving at the suspension decision, a court
will be slow to find the employer acted unlawfully. In this case the
reasons provided were detailed and not without merit and the
applicant was given more than ample time to make submissions.
11.2
The merits of the charge, unless obviously
groundless or based in bad faith, are not appropriate matters for
consideration at the
stage of determining the lawfulness of a
precautionary suspension. Moreover, the investigation report, which
is extremely detailed,
does provide support for the
bona
fide
nature of the charge of
misconduct.
11.3
In the context of the suspension of other
senior managers, the conduct of SAMWU members demanding the
applicant’s suspension
made the potential instability at the
respondent a legitimate consideration for the respondent to have
taken into account in terms
of Regulation 6(1) of the disciplinary
code.
[12]
The
tabling of the alleged misconduct before the Council in April, even
if it was contrary to clause 5 (2), does not affect the
lawfulness of
the suspension. Once the Council was apprised of the alleged
misconduct, it could not simply ignore the allegation.
In this
regard, I note that the applicant cites an earlier decision of mine
in
Lebu
v Maquassi Hills Local Municipality & others
[3]
in
support of her argument, but in that judgment on this issue, I made
the following finding, which I believe is equally apposite
here:
“
Non-compliance
with regulation 5(2)
[14]
The applicant complains that only two of the allegations of
misconduct with which he was eventually charged were actually
discussed at the first special council meeting. Also, these
allegations were not tabled by the mayor or by himself (at that stage
he had not yet been suspended and no acting municipal manager had
been appointed). This, he submits, is a breach of regulation
5(2),
which is a mandatory step in the institution of disciplinary
proceedings.
[15]
I do not believe the obligation on the mayor to table the allegations
constitutes a peremptory step in the sense that it is
a necessary
prerequisite which must occur before the council can consider any
particular allegation against the municipal manager.
What regulation
5(2) does do is to place an obligation on the mayor to table such
allegations if they are made, and the mayor would
be failing in her
duties if she did not do so when that happens. But merely because the
mayor does not table allegations of misconduct
against the municipal
manager, does not prevent the council from discussing them.”
[4]
12.1
The completion of the investigation was not
the only consideration in suspending the applicant and accordingly it
cannot be said
that the Council acted in a grossly unreasonable
manner or
ultra vires
in
continuing with her suspension on 19 May 2015.
12.2
Although the applicant also raised an
additional ground in argument relating to the respondent’s
alleged violation of Regulation
6(2) this was not pleaded in the
founding affidavit and accordingly cannot be entertained.
[13]
On the question of costs, in light of the
fact that it is partly in response to pressure from a third party,
which may or may not
be legitimate that is one of the reasons for the
applicant’s suspension and that she might understandably be
particularly
aggrieved about that, I do not think that her
application was vexatious or that it would be fair to mulct her with
costs.
Order
[14]
In light of the above,
14.1
the application is dismissed;
14.2
no order is made as to costs.
R
LAGRANGE, J
(Judge
of the Labour Court)
Appearances:
For
the Applicant: M S Sikhwari
Instructed
by: PBN Mawila Attorneys
For
the Third Respondent: MK Mathipa
Instructed
by: Lebea: and Associates
[1]
Unreported
(J3047/12) [2013] ZALCJHB 34 (9 April 2013)
[2]
2010
(3) SA 31 (KZP).
[3]
(3)
(2012) 33
ILJ
2623 (LC)
[4]
At 2628