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[2015] ZALCCT 24
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Mdaka v Nama Khoi Municipality and Others (C922/2014) [2015] ZALCCT 24 (20 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C922/2014
DATE:
20 FEBRUARY 2015
Not
Reportable
In
the matter between:
NOZUKO
PATIENCE
MDAKA
.............................................................................................
Applicant
And
NAMA KHOI
MUNICIPALITY
.................................................................................
First
Respondent
JANNIE T
LOUBSER
..............................................................................................
Second
Respondent
JACOBUS VAN
WYK
................................................................................................
Third
Respondent
Date
heard: 17 February 2015
Delivered:
20 February 2015
JUDGMENT
RABKIN-NAICKER
J
[1] The applicant
seeks an order on an urgent basis in the following terms that:
“
The
suspension of the Applicant by the First Respondent on 12 June 2014
(date of first Respondent’s Resolution) be and is
hereby
declared unlawful;
The Applicant’s
suspension is set aside and Respondents are ordered to reinstate her.
The indefinite
“Compulsory Special Leave” which the Respondents have
imposed on the Applicant is regarded as an extension
of the earlier
“suspension” and is declared unlawful and is set aside.”
[2] The applicant
the Chief Financial Officer of the First Respondent, filed founding
papers in this application on the 17 October
2014. She was placed on
precautionary suspension, pending the institution of disciplinary
proceedings, with full pay, on the 13
June 2014 in terms of the Local
Government: Disciplinary Regulations for Senior Managers, 2010 (the
regulations) following on a
Council resolution of the first
respondent. She avers in her founding papers that at the time she
signed the founding papers the
suspension “is well in excess of
3 months, and accordingly in non-compliance with the regulations in
particular regulation
6(6)(a)”. The validity of her suspension
she submits, ended on 11 September 2014.
[3] Regulation
6(6) reads as follows:-
“
(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 the
council.”
[4] On the 12
September 2014, the first respondent wrote to her placing her on
“compulsory special leave from 13 September
until further
notice from the municipality, pending finalization of the
disciplinary action”. She submits that this “compulsory
special leave” is nothing but the extension of her suspension.
I note that by the time this matter was heard in court, the
first
respondent had further, on the 6 February 2014, uplifted the
so-called “compulsory special leave” and purportedly
put
the applicant on precautionary suspension for a second time.
Applicant did not seek to amend her notice of motion to take account
of these developments. It was submitted on her behalf that for all
intents and purposes she remained unlawfully suspended given
the
applicable regulations, from the time that three months had elapsed
since her first suspension. A date has now been set for
the
disciplinary enquiry of the applicant, which was confirmed from the
bar to be in two weeks from the date of this hearing.
Urgency
[5] The grounds
for urgency are set out in paragraph 38 of the founding affidavit as
follows:
“
38.1 The
matter is clearly urgent. My mandatory 3 months suspension has
expired, but continues unlawfully, and is one that has lapsed
by
reason of me not being charged within that 3 month period.
38.2 The Council
is not empowered to extend my suspension, in these circumstances.
(see Regulation 6 (6)(b), supra.
38.3 I wrote to
the Municipality per Annexure “F”, and awaited their
advice as to their Investigations and the Charge
Sheet against me,
but they have as yet not responded.
38.4 My attorneys
are in Durban and I needed to consult with them.
38.5 I had a
death in my family in the interim period, and this contributed to
much delay, for which I am apologetic. This was beyond
my control and
unanticipated.
38.6 My very
close aunt Mrs Nozizwe Agnes Khani who was more of a mother to me
died on 30 September 2014 and the funeral services
which took place
in the distant Colesburg and De Aar still continues.
38.7 I needed to
collect sufficient funds to place my attorneys in fees, for the
purposes of this Application. Unlike the Respondents,
I am not a
person of means.”
[6] Essentially,
on her own version applicant’s suspension was invalid as of the
12 September 2014. Her affidavit is signed
the 15 October 2014. It is
filed on the 17 October 2014. She provides no details as to when or
where she consulted with her attorneys.
In addition, the court file
contains a letter dated 11 December 2014 from her attorney’s
correspondent in Cape Town stating
that the file had been indexed and
paginated and requesting an allocation for a set down date. The
Labour Court has a judge on
urgent duty throughout the year,
including any recess period. It is evident that no attempt was made
to ensure this matter be set
down to be heard on an urgent basis as
from 15 October 2014.
[7] Taking into
account the above, this application simply cannot be considered to be
urgent. Even had a request been made to set
the application down with
the necessary urgency after the founding papers had been filed, the
delay of over one month between the
end of the three month period of
applicant’s suspension and the signing of the founding
affidavit has not been sufficiently
explained. The words of Van
Niekerk AJ (as he then was) in
National
Police Services Union & others v National Negotiating Forum &
others
[1]
are apposite:
[39]
The latitude extended to parties to dispense with the rules of this
court in circumstances of urgency is an integral part of
a balance
that the rules attempt to strike between time-limits that afford
parties a considered opportunity to place their respective
cases
before the court and a recognition that in some instances, the
application of the prescribed time-limits, or any time-limits
at all,
might occasion injustice. For that reason, rule 8 permits a departure
from the provisions of rule 7, which would otherwise
govern an
application such as this. But this exception to the norm should 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 to seek
relief in this court.”
[8] My finding
that this matter is not urgent should in no way be read as a
vindication of the first respondent’s failure
to meet its
statutory obligations. However, the impact of such failure on the
applicant’s rights, if any, may fall to be
determined in
another forum.
[9] In all the
above circumstances, I make the following order:
Order
1.
The application is struck off the roll.
2.
There is no order as to costs.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
Adv. Instructed by Messrs Dehal Attorneys
Respondent:
Adv. C. Bosch instructed by Wessels and Smith Attorneys
[1]
(1999) 20 ILJ 1081 (LC)