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[2015] ZALCJHB 193
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Mere v Tswaing Local Municipality and Another (J1236/15) [2015] ZALCJHB 193; [2015] 10 BLLR 1035 (LC) ; (2015) 36 ILJ 3094 (LC) (7 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: J 1236 / 15
In the matter between:
MERE, SHADRACK KOTLHAO
Applicant
and
TSWAING LOCAL MUNICIPALITY
First Respondent
SEHULARO KGOSIETSILE
(ADMINISTRATOR)
Second Respondent
Heard
:
02 July 2015
Delivered
:
07 July 2015
Summary:
Interdict application
–
principles stated – application of
principles to matter – issue of clear right considered
Suspension
– whether suspension unlawful – provisions of Municipal
Regulations as it stands determinative as to whether
suspension
unlawful
Suspension
– authority to suspend – whether administrator has
authority to suspend – provisions of Section 139
of
Constitution considered – administrator has authority to
suspend
Clear
right – interpretation of Municipal Regulations –
substantial compliance shown
Interdict
– no clear right shown – application dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This matter concerns an urgent application
by the applicant seeking an order declaring that his suspension by
the respondents is
invalid and unlawful. The applicant further seeks
an order that his suspension be uplifted with immediate effect and he
be reinstated
into his normal duties.
[2]
This
matter does not concern any issue of unfairness or unfair labour
practice. The case of the applicant is squarely founded
on
whether his suspension was lawful in terms of the Local Government:
Disciplinary Regulations for Senior Managers (‘Municipal
Regulations’)
[1]
,
namely whether the respondents had complied with the pre suspension
processes as contemplated by the Municipal Regulations itself
in
effecting his suspension. The case of the applicant also has a
second leg, which concerns whether the second respondent,
as
administrator, in fact had the authority to effect the suspension of
the applicant in the first place.
[3]
This is yet another instance of a case
arising out of a dysfunctional municipality, in which intervention of
the provincial government
was needed to fulfil the tasks in place and
stead of the senior management and the council of the municipality,
and then ending
up before this Court. I remain concerned with the
large number of these kinds of cases which find their way to this
Court, which
can only further serve to further hamper service
delivery to the residents of such municipalities.
[4]
The
applicant is seeking
final
relief, and as such, the applicant must satisfy three essential
requirements which must all be shown to exist, being: (a)
a clear
right; (b) an injury actually committed or reasonably apprehended;
and (c) the absence of any other satisfactory remedy.
[2]
As these are motion proceedings in which the applicant seeks such
final relief, insofar as there are factual disputes between
the
parties these disputes are to be decided in terms of the principles
enunciated in
Plascon
Evans Paints v Van Riebeeck Paints.
[3]
In
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and
Another
[4]
the Court said:
‘…
.
where
an applicant in motion proceedings seeks final relief, and there is
no referral to oral evidence, it is the facts as stated
by the
respondent together with the admitted or undenied facts in the
applicants' founding affidavit which provide the factual
basis for
the determination, unless the dispute is not real or genuine or the
denials in the respondent's version are bald or uncreditworthy,
or
the respondent's version raises such obviously fictitious disputes of
fact, or is palpably implausible, or far-fetched or so
clearly
untenable that the court is justified in rejecting that version on
the basis that it obviously stands to be rejected.
’
I
will now set out the relevant background facts on which this matter
is to be determined, arrived at applying the above principles.
Background
facts
[5]
Being
a municipality, the first respondent is governed by the provisions of
the Local Government: Municipal Systems Act
[5]
(the ‘Systems Act’). The conducting of discipline
against the senior managers of the first respondent is regulated
by
the disciplinary regulations promulgated in the Municipal Regulations
referred to above, which are derived from the Systems
Act.
[6]
Where it comes to the suspension of senior
managers as part of the disciplinary process in the Municipal
Regulations, this is determined
by Regulation 6 of the Municipal
Regulations. The relevant part of this Regulation reads:
‘
(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 subregulation (1), as
well as the senior manager's representations contemplated
in
subregulation (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.’
[7]
The applicant was indeed appointed by the
first respondent in terms of Section 54A of the Systems Act as a
senior manager, having
been appointed as its municipal manager in
terms of a written contract of employment, commencing 1 April 2012.
Clause 14
of the applicant’s employment contract provides that
he could be suspended if it was alleged he committed ‘serious
misconduct’, and that the Municipal Regulations shall regulate
and determine the conduct of discipline against the applicant.
[8]
The undisputed evidence is that the first respondent was
dysfunctional, resulting in intervention by the Provincial Government
of the North West Province in terms of Section 139(1) of the
Constitution, which provision will be dealt with more fully
hereunder.
[9]
On 29 April 2015, the Provincial Executive Council resolved to invoke
Section 139(1)(b) for a minimum period of six months and
a maximum
period of twelve months, commencing 1 May 2015. According the
respondents, this decision was necessitated by the
first respondent
being in what was called a ‘crisis’ of maladministration,
to the extent that it was unable to even
execute its mandate.
The maladministration included nepotism relating to staff
appointments, financial mismanagement, failure
to pay over
contributions and payments to third parties and statutory entities,
and failing to recover monies owed to it.
[10]
Pursuant to this intervention, the second respondent was appointed as
administrator of the municipality, effective 15 May 2015,
in terms of
a written letter of appointment, setting out all of his powers.
As administrator, and in terms of the appointment
made, the second
respondent in effect stepped into the shoes of the municipal
council. The municipal council was so informed
on 15 May 2015,
and then disbanded. The second respondent actually commenced
his duties on 17 May 2015, and would continue
with such duties until
a new council was elected.
[11]
According to the second respondent, and following his appointment, he
commenced an investigation into the affairs of the first
respondent,
which included determining the possible causes of the
dysfunctionality. It was reported to the second respondent
that
certain employees were reluctant to provide information to the second
respondent because of intimidation and fear of victimization,
on the
part of the applicant. The fact is that the presence of the
applicant at work could jeopardise the second respondent’s
investigation and witnesses could be interfered with. The
second respondent also suspected the applicant of serious misconduct.
[12]
For the above reasons, and on 1 June 2015, the second respondent
prepared a letter headed a ‘notice of intention to suspend’
to be given to the applicant. This letter advised the applicant
of the intention to suspend him based on an allegation only
referred
to as ’serious misconduct’ as contemplated by his
employment contract. It was recorded that the applicant
was
given 48 hours to provide reasons in writing as to why he should not
be suspended, and that these written reasons had to be
submitted by 9
June 2015 at 12h00.
[13]
A meeting was then held between the applicant and the second
respondent on 2 June 2015 in which this letter was discussed,
and
handed to the applicant. In this meeting it was explained to
the applicant that his suspension was contemplated because
the
statutory deductions from the employees’ salaries were never
paid over to the institutions concerned, as well as instances
of
financial maladministration and some R30 million being unrecovered
for several years. I accept that the applicant was
indeed aware
why he was being suspended, having been so informed in this meeting.
[14]
On 8 June 2015, the applicant responded to the letter of intention to
suspend given to him on 2 June 2015. The applicant
said that he
was ‘unable to make sense’ of the allegations of serious
misconduct because he was not provided with the
‘form of the
misconduct’. It was recorded that particulars of the
misconduct had to be set out in the notice
of intention to suspend,
and because this was not done, it was not ‘clear’ to the
applicant as to what to answer.
The applicant states that he
was unable to speculate as to what the second respondent wanted, and
he was unable to provide reasons
as to why he should not be
suspended. The applicant contended that his suspension was in
violation of the Municipal Regulations.
[15]
The second respondent considered the applicant’s letter of 8
June 2015, and resolved to proceed with the suspension of
the
applicant. The applicant was then suspended by way of written
notice dated 17 June 2015, presented to him on 18 June
2015.
The suspension notice referred to the meeting held on 2 June 2015.
The notice recorded that the reasons for the
suspension of the
applicant was the general failure of the applicant as accounting
officer of the municipality in terms of the
Municipal Finance Act,
especially relating to budgeting and revenue collection. It was
further recorded that the view of
the second respondent was that the
applicant’s presence at work could lead to a tampering with the
evidence and/or intimidating
those persons likely to testify against
him. The applicant was notified that disciplinary proceedings
would be instituted
against him and he would be presented with a
formal charge sheet in due course.
[16]
The applicant then brought this application now before me,
challenging the lawfulness of this suspension.
Urgency and jurisdiction
[17]
It is now
trite that the Labour Court has jurisdiction to entertain an
application for
urgent
intervention in the case of suspension of an employee, in terms of
Section
158 of the LRA.
[6]
But it must always be remembered that the Labour Court should only so
intervene in exceptional circumstances. As the
Court said in
Booysen
v Minister of Safety and Security and Others
[7]
:
‘…
.
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
facts of each case. Among the factors to be considered
would in my
view be whether failure to intervene would lead to grave injustice or
whether justice might be attained by other means.
The list is not
exhaustive.
’
[18]
Therefore, the applicant has to show
compelling and extraordinary circumstances as to why this Court
should now intervene, and not
allow the disciplinary process against
the applicant to run its course, in the normal course. As to
whether the applicant
succeeded in doing so
in
casu
, will be dealt with hereunder.
[19]
Then,
and as to the issue of urgency, I accept that this matter is urgent.
In any event, and in the argument submitted by
both parties before
me, the issue of urgency was not really placed in contention.
The applicant was suspended on 18 June
2015, first engaged the
respondents through his attorneys on 22 June 2015 to demand the
uplifting of his suspension, and brought
this application on 24 June
2015. There are thus no hallmarks of self-created urgency and I
am satisfied the applicant acted
promptly and immediately upon being
suspended.
[8]
Both parties have had the opportunity to fully state their
respective cases in the pleadings and in argument, with a complete
set of affidavits filed, and it is my view that it is in the interest
of justice to finally determine this matter. I thus
conclude
there are proper grounds to finally determine this matter as one or
urgency.
[20]
I will now proceed to consider the
applicant’s application on the merits thereof, firstly
considering the issue of the existence
of a clear right. In
this regard, I shall firstly consider the applicant’s case
relating to the lack of authority of
the second respondent to have
suspended the applicant in the first place.
Clear
right: authority of the second respondent
[21]
I will first deal with the issue of whether
the second respondent had the authority to suspend the applicant,
because if this part
of the applicant’s case is upheld, it will
not be necessary to determine the case of the applicant relating to
Regulation
6 of the Municipal Regulations, and the suspension would
be unlawful based on this ground alone.
[22]
The
applicant’s case of the lack of authority of the second
respondent is founded on five contentions. Firstly, according
to the applicant, it is only the municipal council of the first
respondent that has the authority to place the applicant on
precautionary
suspension, and no one else, even if these was
intervention by the Provincial Government. Secondly, the
applicant submitted
that the authority to suspend came from
Regulation 6(4), which made specific reference to the municipal
council only. Thirdly,
applicant contended that only the
municipal council can appoint a municipal manager in terms of the
Systems Act and it followed
that only the same council could have the
authority to suspend such manager. Finally, the applicant
contended that Section
139(1)(c) of the Constitution
[9]
only made provision for intervention where it comes to ‘executive
obligations’, and the suspending of senior managers
does not
constitute such an ‘executive obligation’, leaving the
issue in the hands of the municipal council.
Finally, the
applicant submitted that the second respondent, if regard is had to
the terms of reference of his appointment, was
not empowered in terms
thereof to take any disciplinary action against senior managers.
[23]
This
matter does not concern the validity or legitimacy of the appointment
of the second respondent as administrator and/or the
terms of
reference of his appointment. As was stated in
Tsietsi
v City of Matlosana Local Municipality and Another
[10]
,
this Court in any event does not have jurisdiction to decide such
questions.
[24]
Mr Scholtz, representing the applicant,
argued that because the appointment of the second respondent was made
pursuant to Section
139(1)(c) of the Constitution, his terms of
reference could only relate to an “executive obligation’,
and this did
not include the disciplining or suspension of senior
managers such as the applicant.
[25]
Section 139(1))(c) of the Constitution
provides:
‘
When
a municipality cannot or does not fulfil an executive obligation in
terms of the Constitution or legislation, the relevant
provincial
executive may intervene by taking any appropriate steps to ensure
fulfilment of that obligation, including- ….
(c)
dissolving
the Municipal Council and appointing an administrator until a newly
elected Municipal Council has been declared elected,
if exceptional
circumstances warrant such a step.’
[26]
I
cannot agree with the narrowed interpretation Mr Scholtz seeks to
place on ‘executive obligation’ where it comes to
interventions in terms of Section 139(1), for the reasons I will now
set out. In
Premier,
Western Cape and Others v Overberg District Municipality And
Others
[11]
the Court said:
‘…
.
Broadly stated for present purposes, however, s 139 of the
Constitution permits and requires provincial governments to supervise
the affairs of local governments and to intervene when things go
awry
. ….’
[27]
What
is thus envisaged is a supervisory function in extraordinary
circumstances where the municipality cannot fulfil its
functions.
[12]
Where this
supervisory function is discharged to the extent of dissolving the
municipal council and appointing an administrator
in its stead, this
has to mean that the administrator for all intents and purposes steps
into the shoes of the municipal council
and fulfils the functions
that the council normally does. In
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and
Others
[13]
it was held
as follows
‘
Section
139 empowers the provinces to intervene where a municipality cannot
or does not fulfil an executive obligation in terms
of the
Constitution. If it intervenes, the provincial government may take
appropriate steps to ensure that the obligation in question
is
fulfilled. The steps taken may include the provincial government
itself assuming the responsibility for the obligation or even
dissolving a municipal council and replacing it with an
administrator. ….’
[28]
The
Court in
Mnquma
Local Municipality and Another v Premier of the Eastern Cape and
Others
[14]
specifically
dealt with the meaning of ‘executive obligation’ as
contemplated by Section 139(1) and said the following:
[15]
‘…
.
Co-operative government not only relates to the provision of support
and assistance to local governments, but also involves an
aspect of
supervision. Section 155(6) of the Constitution in fact pertinently
provides that a provincial government must by legislative
or other
measures provide, not only for the support, but also for the
monitoring of local government. In terms of subsection
(7) both
the national and provincial governments have legislative and
executive authority to "see to the effective performance
by
municipalities of their functions . . .". This
provision underlines the fact that the autonomy of municipalities
is
relative. The duty to perform a monitoring function is accompanied by
the right to take corrective measures. Intervention is
authorised by
the subject-matter of this judgment, namely, section 139 of the
Constitution. ….
’
In
this context, the Court then held:
[16]
‘…
.
It must be acknowledged that the use of the term "executive
obligation" was intentional. In the context of the autonomous
position occupied by local government in the constitutional
framework, the aim was to limit intervention to a failure to fulfil
obligations that are executive in nature. The term must, in my view,
be given a meaning consistent with the ordinary meaning attributed
to
it in a democratic dispensation and the executive authority of the
national and provincial executives in terms of the Constitution.
The
obligation of local government is to provide government at a local
level and to discharge the functions associated therewith.
This
obligation is exercised within the functional areas referred to above
and extends to the obligation to, within those functional
areas,
implement and administer legislation in relation thereto, provide the
services associated therewith, provide an administration
to do so,
develop policy in relation thereto and initiating by-laws to
effectively govern within those functional areas. ….
’
The
Court concluded:
[17]
‘
To
conclude, the purpose of section 139(1) is to enable a provincial
executive to take steps that are necessary to place a municipality
in
a position to fulfil its executive obligations. The section has both
legal and political safeguards built into it, namely, the
objective
determination of whether there has been a failure to fulfil an
executive obligation, to intervene in a manner that is
appropriate
…..
’
[29]
Applying the reasoning in
Mnquma
Local Municipality,
where the
dysfunctionality of the municipality is such so as to warrant the
extreme intervention by the Provincial Government in
the form of the
dissolution of the municipal council and the replacement thereof with
an administrator, then it has to follow as
a matter of common sense
and logic that the administrator must be permitted to do what the
municipal council would normally do.
That has to be what the
supervisory function entails. If the municipal council had the
authority to suspend the applicant,
as it clearly did, then the
administrator equally must have the authority to do so in its stead.
[30]
It must also be remembered that any
intervention in terms of Section 139(1)(c) of the Constitution
entails an actual dissolution
of the municipal council until it can
be replaced by a newly elected council. To then suggest that
this defunct municipal
council still retains some functions, or that
certain administrative and management functions cannot be fulfilled
until the new
municipal council is elected, is simply
incomprehensible. The administrator is for all practical
purposes an interim council,
to be replaced with a new council once
elected.
[31]
In order for the administrator to
effectively discharge his or her duties, then surely the
administrator must exercise control and
supervision over the senior
managers of the municipality. After all, that is what the
municipal council did prior to dissolution.
In my view, and for
the reason given, any reference to the ‘municipal council’
in the Municipal Regulations must, as
a necessary consequence,
include a reference to the administrator in the case of a Section
139(1)(c) intervention.
[32]
I accordingly reject the applicant’s
contention that the second respondent did not have authority to
suspend him. It
is my view that ‘executive obligation’
in the case of an intervention in terms of Section 139(1)(c) also
contemplates
all aspects of management and supervision of the first
respondent’s senior managers, by the second respondent.
[33]
The applicant’s case as to the terms
of reference of the second respondent can be swiftly disposed of.
It is clear from
a simple reading of the second respondent’s
letter of appointment with accompanying terms of reference that he
has the power
to attend to all ‘labour matters’ of the
first respondent. Mr Scholtz sought to submit that the
reference
to ‘discipline of workers’ in these documents
where it came to labour matters, meant that senior managers were not
included, because they were not ‘workers’. This
argument has no merit. The actual provision in the letter
of
appointment reads,
in toto
:
‘
Attend
to all labour matters [outstanding disciplinary cases, labour
disputes, functionality of LLFF, instil culture of work and
discipline of workers]’
.
The reference in brackets, in my view, is not a closed list, but is
simply pertinent examples of what is envisaged under
“labour
matters’. If the functions of the second respondent were
to be only limited to what is contained in the
brackets, then there
would have been no reference to ‘all labour matters’.
In any event, the second respondent
is given the general power to
manage the overall administration of the first respondent. I am
therefore satisfied that the
second respondent’s letter of
appointment and terms of reference do make provision for the
authority to suspend the applicant,
being a ‘labour matter’.
[34]
In the circumstances, the applicant’s
case that the second respondent had no authority to suspend him falls
to be rejected.
The applicant accordingly has not shown the
existence of a clear right in this regard.
Clear
right: Regulation 6
[35]
There
is no doubt that Regulation 6 of the Municipal Regulations does apply
in this case. These regulations also form part
of the
applicant’s contract of employment, by incorporation therein.
If Regulation 6 has not been complied with
by the second respondent
in effecting the suspension of the applicant, the applicant’s
suspension would be unlawful, and
the applicant would succeed in
demonstrating the existence of a clear right. In considering
this question, I will only have
regard to the judgments post the
McKenzie
[18]
and
Gradwell
[19]
judgments of the SCA and LAC respectively, in that the determination
of this issue following these judgments is no longer contaminated
by
general consideration of fairness and fair labour practices.
[36]
In
Mojaki
v Ngaka Modiri Molema District Municipality and Others
[20]
the Court held as follows:
‘
The
object of regulation 6 of the regulations is to afford an employee a
hearing before the decision to suspend him or her is taken.
That
object is achieved by calling on the employee to show cause why he or
she should not be suspended pending an investigation
or disciplinary
hearing. ….’
[37]
Regulation
6 thus contemplates the opportunity to make representations before
the final decision is taken to suspend a senior manager.
That
means that the senior manager must at least be placed in a position
where he or she is able to make such representations.
It is for
this reason that the municipality must give the senior manager notice
of intention to retrench, and in such notice call
upon the senior
manager to make representations
[21]
.
In
Lebu
v Maquassi Hills Local Municipality and Others (2)
[22]
the Court
held as follows insofar as it concerns this notice:
'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.
….’
[38]
A
similar approach was followed in
Retlaobaka
v Lekwa Local Municipality and Another
[23]
where the Court said:
‘
The
whole object of inviting representations from the employee on whether
he or she should be suspended would be rendered nugatory
if the
employee is in the dark as to why the employer believes he or she
should not be at the workplace until the disciplinary
proceedings are
concluded. Without knowing the employer's reasons, the employee could
only guess what they might be and his
or her response would be
mostly superfluous and speculative answers to unknown propositions.
I
accept that before taking the decision to suspend the employee the
council only needs to have reason to believe it would be desirable
for one or more of the reasons mentioned based on the information it
has before it, but that information also includes the
employer's
representations on the purpose of the proposed suspension, which
clearly must be made known to the employee for those
representations
to be meaningful.
’
[39]
The
Court in
Tsietsi
[24]
also analysing the recent authorities relating to Regulation 6 and
said:
‘
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.
’
I
agree with the above reasoning in
Tsietsi
.
[40]
Therefore, and for a senior manager to be
lawfully suspended in terms of Regulation 6, the municipality must
have reason to believe
that at least one of the circumstances as
contemplated by Regulation 6(1) exist. The municipality must
then notify the senior
manager of its intention to suspend him or
her, and provide, at the very least, basic particulars as to what
motivated this intention
to suspend, so that the senior manager can
provide informed answers as to why he or she should not be
suspended. Detailed
evidence or particulars need not be
provided. The senior manager must then be given at least seven
days to provide such a
response. Once this response is given,
it must be considered by the municipality, and if it decided to
continue with the
suspension, the senior manager must be informed in
writing of the suspension and the reasons why he or she is being
suspended,
with reference to the grounds set out in Regulation 6(1).
[41]
If
the above is not adhered to, the suspension may well be unlawful. In
Biyase
v Sisonke District Municipality and Another
[25]
the Court held:
‘
These
provisions may well be unduly onerous. But it is common cause that
the parties are bound by them. Failure to do so would make
the
suspension unlawful for want of compliance with the regulations.’
[42]
It is
equally important to consider that the senior manager must utilize
the opportunity to make representations when called on
to do so.
The failure or refusal by the senior manager to make such
representations would mean that the senior manager cannot
be seen to
thereafter complain about the lawfulness of his or her suspension
when it is then implemented
[26]
.
[43]
Applying the above principles to the facts
in casu
, I
am satisfied that there has been substantial compliance with
Regulation 6 by the respondents, for the reasons I will now set
out.
[44]
I accept that the notice of intention to
suspend dated 1 June 2015 only refers to alleged misconduct and no
particularity is provided
of the kind that would enable the
applicant, as senior manager, to make informed representations as to
why he should not be suspended.
If the suspension was founded
only on this notice, the applicant’s suspension may well have
been unlawful.
[45]
But this was not just a case of the
applicant only being presented with the notice of intention to
suspend and nothing else.
A meeting was convened between the
applicant and second respondent to discuss the notice upon it being
presented, and in this meeting
the applicant was indeed informed in
sufficient particularity as to why the second respondent intended
suspending him. It
is so that in the replying affidavit, the
applicant does deny this meeting was held, but the
Plascon
Evans
principle works squarely against
the applicant in this respect, and the events of the meeting was
confirmed by Moses Pholo, who
was also present. Further, and in
the ultimate notice of suspension dated 17 June 2015, which was
written before this dispute
was initiated by the applicant, specific
reference is made to the meeting of 2 June 2015. I remain
convinced that the reasons
for the applicant’s suspension was
discussed in the meeting.
[46]
There
is nothing in Regulation 6(2) (as read with Regulation 6(1)) that
prescribes that the notice if intention to suspend given
to the
senior manager must be in writing. It is only the actual notice
of suspension in terms of Regulation 6(5) that must
be in writing.
In my view, there is therefore nothing wrong in a municipality giving
a senior manager a short written
notification of the intention to
suspend him or her for ‘alleged misconduct’, and then,
when presenting such notice,
informing the senior manager verbally of
the reasons why this is intended. This is what happened
in
casu
.
As the Court said in
Mojaki
:
[27]
‘
In
my view, whilst the administrator may be criticised for failing to
respond to the applicant when he requested the copy of the
letter,
this, however, does not detract from the fact that the applicant was
made aware of the action which the administrator intended
taking and
was offered an opportunity to make his representation which he failed
to do ….’
[47]
I accept that the notice of intention to
suspend of 1 June 2015 records that the applicant had 48 hours to
provide written reasons
as to why he should not be suspended.
This, on face value, would be at odds with the 7 day time period in
Regulation 6(2)
to make such representations. However, the same
notice says that the applicant must submit these written reasons by
no later
than 9 June 2015, which would be in compliance with the 7
day time period in the Regulation. In my view, the applicant
clearly
understood that he had 7 days to make his representations as
to why he should not be suspended. This is evident from his
written response to the notice of intention to suspend, only
submitted on 8 June 2015. I am satisfied that there is no
irregularity
in the notice of intention to suspend in this regard.
[48]
The applicant then in fact made
representations, as referred to above. In my view, these
representations were deliberately
written on the basis that the
applicant allegedly was not informed of the reasons for his intended
suspension. I believe
that the applicant opportunistically
seized on the opportunity created by a lack of particulars on the
actual written notice of
1 June 2015 and ignored what he had been
told in the meeting of 2 June 2015 because it was verbal. The fact
that the applicant
chose to respond in this way thus cannot detract
from the fact that he was given an opportunity to make
representations, and did
so. The applicant has not made out any
case that what he submitted on 8 June 2015 was not considered by the
second respondent,
and I accept that it was.
[49]
In the founding affidavit, the applicant
has said that Regulation 6(5) has not been complied with in that he
has not been given
reasons for his suspension and that the MEC was
not informed of his suspension as required. There is simply no
substance
in these contentions. A mere reading of the
suspension notice of 17 June 2015 shows that he applicant was given
clear reasons
why he was being suspended, and these reasons
corresponded with the requirements for a lawful suspension in
Regulation 6(1).
As to whether or not the MEC was informed,
this simply, in my view, cannot detract from the lawfulness of the
suspension of the
applicant where Regulations 6(1), (2), (3), (4) and
(5)(a) have been substantially complied with, as they were, and it is
not necessary
to devote any further time to this contention.
[50]
Mt
Scholtz heavily relied on the judgment in
Lebu
v Maquassi Hills Local Municipality and Others (2)
[28]
in support
of his case, in which judgment the Court indeed interdicted the
suspension of the senior manager on the basis that it
was unlawful
for want of compliance with Regulation 6. I however point out
that this case is distinguishable on the facts,
considering
that
in that case, the municipality notified the manager of its
justification for his suspension and called on his to make
representations,
on the same day that he was actually suspended. The
municipality in that matter also failed to articulate the purpose of
the suspension.
Although I agree with the general principles
enunciated by the Court in
Lebu
with regard to Regulations 6 in general, which I have dealt with
above, I do not believe this judgment assists the applicant’s
case
in
casu
.
[51]
I finally refer to the fact that the
applicant has not made out a case that the suspension was unlawful
for want of a proper reason
to suspend him as contemplated by
Regulation 6(1).
[52]
The
seniority of the position of the applicant and the fact that he in
effect refuses to recognize the authority of the administrator
(second respondent) are also important factors in deciding whether
the applicant’s suspension was objectively justifiable.
In
casu
,
the applicant, as municipal manager, was the most senior of the
managers and his approach towards the second respondent entirely
counterproductive. Also, the applicant’s continued
presence at work, considering his position, would make it very
difficult for the second respondent to conduct a proper investigation
into what was a dysfunctional municipality. As was said
in
Mojaki
:
[29]
‘
The
allegation that the applicant refused to obey instructions from the
administrator is in my view very serious taking into account
in
particular the level of his responsibility and seniority. It is for
this reason that I am of the view that the facts and the
circumstances justified the action taken by the administrator to
suspend him. In other words, there exists an objectively
justifiable
basis for the administrator to deny the applicant access to the
workplace.
’
And
also i
n
Phutiyagae
v Tswaing Local Municipality
[30]
the Court
held:
‘
The
applicant is the head of the department the respondent intends
investigating. During the course of the investigation there is
a
possibility that the applicant's subordinates may have to be
interviewed, that documents may have to be accessed. The continued
presence of the applicant might possibly hinder the investigations.
The
rationale underpinning the applicant's suspension appears to be
reasonable and it is prima facie informed by the suspicion that
the
applicant has committed serious misconduct.
’
[53]
I thus conclude that there has been
substantial compliance with Regulation 6 in this instance by the
respondents. The suspension
of the applicant was motivated by
objectively justifiable considerations, of the kind envisaged by
Regulation 6(1). The applicant
was properly notified of the
intention to suspend him and the reason for this intended action,
partly in writing and partly verbally.
The applicant was given
7 days’ notice to file representations, which he did. The
applicant’s representations
were considered and he was
thereafter given proper written notice of his suspension. His
suspension was thus lawful.
[54]
Accordingly, the applicant’s case
that his suspension was unlawful for want of compliance with
Regulation 6 must thus also
be rejected.
Conclusion
[55]
As the applicant has failed in establishing
that his suspension by the respondents was unlawful on the two
principal grounds he
has raised, it follows that the applicant had
failed to establish a clear right to the relief sought. In the
absence of a
clear right, the applicant’s application must fail
for this reason alone.
[56]
I may
however point out that the applicant still has his remedy of
challenging his suspension in terms of the dispute resolution
processes under the LRA based on alleged unfair conduct on the part
of the respondents. Similarly, the suspension is of limited
duration, coming to an end after three months if the disciplinary
proceedings have not commenced by then.
[31]
[57]
In the light of all of the above, I
therefore conclude that the applicant has failed to demonstrate a
clear right to the relief
sought and has failed to provide any
compelling considerations of urgency or exceptional circumstances to
justify intervention
in his suspension in this case.
[58]
This
then only leaves the issue of costs. The applicant has elected
to approach the Labour Court on an urgent basis when it
must have
been clear there was no basis for doing so. Mr Scholtz, who
represented the applicant, raised a similar case in
the judgment of
Tsietsi
v City of Matlosana Local Municipality and Another
[32]
which was dismissed with costs. He should thus have been
properly forewarned. Also, the applicant was legally assisted
from the outset by Mr Scholtz. There is accordingly simply no
reason why costs should not follow the result in this matter.
Order
[59]
I accordingly make the following order:
59.1
The applicant’s application is dismissed with costs.
_____________________
S.Snyman
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Mr F Scholtz
of Scholtz Attorneys
For
the Respondents:
Advocate Ramoshaba
Instructed
by:
Mokhetle Inc Attorneys
[1]
GN 344 as contained in GG 34213 of 21 April 2011.
[2]
Setlogelo v Setlogelo
1914 AD 221
at 227;
V &
A Waterfront Properties (Pty) Ltd and Another v Helicopter and
Marine Services (Pty) Ltd and Others
2006 (1) SA 252
(SCA) at para 20.
[3]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E 635C; See also
Jooste
v Staatspresident en Andere
1988
(4) SA 224 (A)
at 259C – 263D;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at paras 26 – 27;
Molapo
Technology (Pty) Ltd v Schreuder and Others
(2002) 23 ILJ 2031 (LAC) at para 38.
[4]
2009 (3) SA 187
(W) at para 19.
[5]
ref
[6]
Section
158(1) reads:
‘
(1)
The Labour Court may (a) make any appropriate order, including (i)
the grant of urgent interim relief (ii) an interdict; (iii)
an order
directing the performance of any particular act which order, when
implemented, will remedy a wrong and give effect to
the primary
objects of this Act; (iv) a declaratory order ….’.
[7]
(2011) 32 ILJ 112 (LAC) at para 54. See also
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
(2012)
33 ILJ 2033 (LAC) at para 46.
[8]
See
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
(2010) 31 ILJ 112
(LC) at para 18;
National
Union of Mineworkers v Black Mountain - A Division of Anglo
Operations Ltd
(2007) 28
ILJ 2796 (LC) at para 12;
Continuous
Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes and Another
(2012) 33 ILJ 629 (LC) at
para 21 – 24.
[9]
Constitution of the Republic of South Africa,
Act
108 of 1996.
[10]
[2015] 7 BLLR 749
(LC) at para 3.
[11]
2011 (4) SA 441
(SCA) at para 1.
[12]
See
City
of Cape Town v Premier, Western Cape, and Others
2008 (6) SA 345
(C) at para 48.6.
[13]
2010 (6) SA 182
(CC) at para 66.
[14]
[2012] JOL 28311
(ECB).
[15]
Id at para
43.
[16]
Id at para
61.
[17]
Id para 79.
[18]
SA Maritime Safety
Authority v McKenzie
(2010)
31 ILJ 529 (SCA)
.
[19]
Member of the Executive
Council for Education, North West Provincial Government v Gradwell
(2012) 33 ILJ 2033 (LAC).
[20]
(2015) 36 ILJ 1331 (LC) at para 29.
[21]
See
Regulation 6(2).
[22]
(2012)
33 ILJ 653 (LC)
at para 16.
[23]
(2013) 34 ILJ 2320 (LC) at para 8.
[24]
Tsietsi v City of Matlosana
Local Municipality and Another
(
supra
)
at para 21.
[25]
(2012) 33 ILJ 598 (LC) at para 20.
[26]
See
Mojaki v Ngaka Modiri
Molema District Municipality and Others
(
supra
)
at paras 29 and 33.
[27]
(
supra
)
at para 32.
[28]
(supra)
[29]
(
supra
)
at para 34.
[30]
(2006) 27 ILJ 1921 (LC) at paras 27 – 28.
[31]
See
Regulation 6(6).
[32]
(
supra
)
footnote 10.