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[2015] ZALCPE 52
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SAMWU obo Nkanjeni v Acting Municipal Manager and Another (P309/15) [2015] ZALCPE 52 (13 October 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
CASE NO: P 309/15
In
the matter between
SAMWU
obo S NKANJENI
Applicant
and
ACTING
MUNICIPAL MANAGER
First
Respondent
NELSON
MANDELA BAY MUNICIPALITY
Second Respondent
Heard:
9 October 2015
Delivered:
13 October 2015
Summary:
Damage that can possibly be caused by the suspension of the
individual applicant to his reputation is not irreparable,
it
therefore does not warrant urgent relief.
JUDGMENT
Lallie
J
[1]
The individual applicant is employed by the second respondent as a
Contacts Controller in the Budget and Treasury Directorate.
The
second respondent suspended the applicant from duty in September 2015
pursuant to allegations of misconduct which involve commercial
transactions with its service providers. On 7 September 2015, the
Radio Algoa, a local radio station, reported the suspension of
a
number of officials of the second respondent in its news. The
applicant was amongst the suspended officials. He launched this
urgent application on 10 September 2015, seeking an order reviewing
and setting aside the first respondent’s decision to
suspend
him. The application is opposed by the respondents.
[2]
The applicant raised a point
in limine
that the first
respondent was not properly appointed to act as the second
respondent’s City Manager when he suspended him.
He therefore
acted
ultra vires
rendering his suspension unlawful. Amongst
the grounds on which the respondents mounted their attack on the
applicant’s case
was lack of urgency. As the applicant
approached this Court on grounds of urgency, the first hurdle he
needs to clear is urgency.
Rule 8 of the Rules for the Conduct of
Proceedings in the Labour Court (the Rules), requires an applicant
for urgent relief to
file a founding affidavit which contains reasons
for urgency and the necessity for urgent relief. The respondents
submitted that
the individual applicant failed to prove that he will
suffer irreparable harm should this application not be granted.
[3]
One of the requisites the applicant had to fulfil was a well-grounded
apprehension of irreparable harm if this urgent application
is
refused and he ultimately succeeds in establishing his right. In an
effort to fulfil the requirement, the individual applicant
submitted
that the suspension has caused irreparable harm to his integrity and
right to dignity. It has a detrimental impact on
him and prejudice
his integrity and reputation as a leader in his church because it
creates the impression that he has been suspended
for fraud and
corruption. The impression is based on announcements by the second
respondent’s new Executive Mayor in numerous
public meetings
and the media that corrupt officials would be suspended for fraud and
corruption. The second respondent has wilfully
made his suspension
public by announcing it in the newspaper and on Radio Algoa.
[4]
The respondents noted that the only harm the individual applicant
complained of was the negative impact his suspension will
have on his
reputation in the eyes of members of his church. It submitted that a
right thinking member of the community will realise
that the
suspension of an official does not imply that the official is
necessarily guilty of misconduct. If members of the individual
applicant’s church consider him guilty of fraud and corruption
as a result of the suspension, their perception is premature
and
unreasonable.
[5]
I have considered the submissions and authority the parties sought to
rely on, on the requisite of irreparable. In determining
whether ham
to reputation constitutes irreparable harm which justifies urgency I
find the following
dictum
in
Mosiane
v Tlokwe City Council
[1]
a
pposite:
“
[17]
The reasons advanced by the applicant why urgent relief is sought
relate to his reputation. This can
hardly be a basis to approach this
Court for relief on an urgent basis. All employees who get dismissed
or suspended and believe
that they are innocent, their reputations
are tarnished by the dismissals or suspensions. They will eventually
get an opportunity
to be heard where the employer should justify the
charges against them. Should they fail to do so, such employees will
be reinstated
with no loss of benefits.”
[6]
Irreparable harm is injury that cannot be remedied. It must be actual
and not conjecture. Any harm which can be caused to the
individual
applicant’s reputation in the eyes of members of his church can
be remedied when the second respondent take a
decision not to take
disciplinary action against him on the basis that the allegations
against him were without substance. It can
further be remedied when
he is exonerated from fraud and corruption. The perception by members
of the applicant’s church
that he is involved in fraud and
corruption is at this stage premature and unreasonable. But most
importantly, any harm to the
applicant’s reputation, integrity
and dignity which his suspension may possibly cause is not
irreparable. The applicant has
therefore not established the
necessity for urgent relief.
[7]
The respondents sought a costs order against the applicant. I am not
convinced that granting the order would be appropriate
because the
applicant did not act unreasonably in bringing this application.
[8]
In the premises the following order is made:
8.1
The application is struck from the roll for lack of urgency.
8.2
No order is made as to costs.
Lallie
J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Mr Van Rensburg of Wikus Van Rensburg Attorneys
For
the Respondents: Advocate Le Roux
Instructed
by Gray Moodliar Attorneys
[1]
[2009]
8 BLLR 772
(LC) at para 17