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[2016] ZALCJHB 40
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Nale v North West Development Corporation and Another (J2532/15) [2016] ZALCJHB 40; (2016) 37 ILJ 2277 (LAC) (12 January 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO
: J2532/15
DATE
: 2016-01-12
In
the matter between
MOJALEFA
JOHANENES
NALE
Applicant
and
NORTH
WEST DEVELOPMENT
CORPORATION
First Respondent
MEC
FOR FINANCE, ECONOMY
AND
ENTERPRISE DEVELOPMENT
Second Respondent
EX
TEMPORE
JUDGMENT
STEENKAMP,
J
:
This
is an application brought on urgent basis to declare the applicant’s
suspension to be “invalid, unlawful, unconstitutional
and of no
legal force and effect,” and to set it aside or to uplift it.
The background to the application is that the
applicant, Mr Nale,
who is the Chief Executive Officer of the first respondent, the North
West Development Corporation, a
State-owned company, has been
suspended by the Corporation as a precautionary suspension pending a
disciplinary hearing that is
due to commence tomorrow, 13 January
2016.
The
applicant faces serious allegations of misconduct. In the
course of the investigation into those allegations, he was initially
put on special leave on 2 March 2015. The Corporation then
formally suspended him, after giving him the opportunity to make
written representations, on 4 August 2015. He challenged both
of those acts at the CCMA. The CCMA, under its unfair labour
practice
jurisdiction, declared the initial suspension under the guise of
special leave to constitute an unfair labour practice
and also
expressed the view that the suspension on the 4 August constituted un
unfair labour practice; however, that ruling has
subsequently been
rescinded.
On
11 December 2015 the Corporation once again suspended Mr Nale,
and it is that suspension that he challenges before this
court.
He does so on the basis of legality. Mr
Scholtz
argued, firstly, that the suspension is invalid because the Board did
not have the authority to suspend him; secondly, that it
is unlawful
for lack of compliance with his contract of employment; and, thirdly,
that it undermines his right to fair labour practices
and is
therefore unconstitutional. Mr
Kirstein
,
for the Corporation, firstly takes issue with the question of
urgency.
I
have asked both parties to address me both on urgency and on the
merits as the issues relating to the requirements for an urgent
interdict, such as the existence of a clear right, also impacts on
the question of urgency. As Mr
Kirstein
pointed out, the current suspension took effect on 11 December.
It is only on the 17 December that the applicant delivered
the
urgent application to this court to be heard on 29 December; however,
it did not serve all the annexures to the application,
and although
that is the matter of some dispute, it is beyond dispute that on 29
December, when the matter served before my brother
Van Niekerk, it
was postponed to today in order for those annexures to be made
available and they were only made available on 5
January.
I
agree with Mr
Kirstein
that, in the circumstances of this case, where the hearing is to
commence tomorrow, there is no urgency in granting the relief
sought. The applicant is suffering no prejudice in
circumstances where he is being remunerated with full benefits and
where
he will have an opportunity to state his case in the hearing to
commence tomorrow. Although he complains about the length of the
suspension, that is about to come to an end when the hearing
commences, and when the outcome of that hearing will make it clear
whether he is to return to work or whether a sanction may be imposed
upon him.
I
would strike the matter from the roll for that reason alone, but I
will nevertheless express my opinion -- albeit
obiter
-- on the merits insofar as it impacts the applicant’s case.
With
regard the averment that it is only the MEC that has the power to
suspend the applicant, Mr
Scholtz
relied not only on the NWDC Act (North West Development Corporation
Ltd Act) and on the Companies Act, but also on the authority
of the
Constitutional Court, that the power to dismiss is necessary in order
to exercise the power to appoint, as expressed in
Masetlha v
President of the Republic of South Africa
&
Another,
[2007] ZACC 20
;
2008
(1) SA 566
(CC) at 68.
There
are in my view two answers to that argument. The first is that
Mr Nale has not been dismissed but merely suspended.
The second is,
more importantly, that it does not appear to me, from my reading of
the Act, that it is only MEC that has the power
to either appoint,
suspend or dismiss him. (When I refer to “the Act”,
I am referring to the North West Development
Corporation Ltd Act, Act
No 6 of 1995). In that Act, at section 11, it deals with the
appointment of the Managing Director
of the Corporation, which is
indeed something to be done by the responsible member, i.e. the
Member of the Executive Council. However,
there is nothing on the
papers before me to show that Mr Nale was indeed appointed as MD.
His letter of appointment and his
contract of employment clearly
refer to him only as the CEO. In his fixed term contract, he is
referred to as “The
Employee” and the preamble reads:
“
The
company wishes to engage in an employment relationship with the
employee on the terms and conditions of this contract.”
And
in paragraph 2.2 it says:
“
The
position of the employee shall be Chief Executive Officer (CEO),
together with such additional duties as may be reasonably attached
thereto, as laid down by the company from time to time. The
employee will report to the Chairperson of the Board of Directors
of
all matters of employment and work performance.”
That
appears to me to be in compliance with section 13 of the Act, which
provides that the Board may appoint employees, and furthermore
section 13(c) provides that the Board may on good cause shown suspend
an employee. That power of the Board is reiterated
in section
15(w), which reads that:
“
The
Board shall have the power to employ, remunerate, house, discharge
or
suspend
officers and employees required
for its operations…”
In
my view, therefore, that leg of the argument has no merit.
Regarding
the argument that the suspension is unlawful because a month has
elapsed since his suspension, I take into account that
after the
initial suspension of 4 August, a disciplinary hearing was initially
set down within a month, on 2 September, and it
was then postponed by
the chairperson, and it appears with no objection from the applicant.
It was further postponed, and as I
have said, it is now set down for
hearing tomorrow, barely a month after the later suspension of
11 December.
Although
Mr
Scholtz
bases his argument on lawfulness and not fairness, the sentiments of
the Labour Appeal Court in
Gradwell
must be considered. That is the case of
MEC
for Education
,
North
West Provincial Government
v
Gradwell
[2012]
8 BLLR 747
(LAC); (2012) 33
ILJ
2033 (LAC), where that court, by whose authority I am bound, said the
following in paragraph [44]:
“
The
proposition that all suspensions should be procedurally fair to avoid
the stigma of an unfair labour practice … requires
some
qualification. Fairness, by its nature, is flexible.
Ultimately, procedural fairness depends in each case upon
the
weighing and balancing of a range of factors, including the nature of
the decision, the rights, interests and expectations
affected by it,
the circumstances in which it is made and the consequences resulting
from it. When dealing with a holding
operation suspension, as
opposed to a suspension as a disciplinary sanction, the right to a
hearing, or more accurately the standadrd
of procedural fairness, may
legitimately be attenuated for three principle reasons. Firstly, as
in the present case, precautionary
suspensions tend to be on full pay
with the consequence that the prejudice following from the action is
significantly contained
and minimised. Secondly, the period of
suspension often will be (or at least should be) for a limited
duration… And,
thirdly, the purpose of the suspension –
the protection of the integrity of the investigation into alleged
misconduct –
risks being undermined by the requirement of an
in-depth preliminary investigation. Provided the safeguards of no
loss of remuneration
and a limited period of operation are in place,
the balance of convenience in most instances will favour the
employer. Therefore,
an opportunity to make written
representations showing cause why a precautionary suspension should
not be implemented will ordinarily
be acceptable and adequate
compliance with the requirements for procedural fairness.”
Those
requirements have been met in this case, and with regard to the
application for a declarator that the suspension was unlawful,
the
court in
Gradwell
goes on to say at paragraph [46] that, in dealing with such an
allegation -- where in that case the allegation was 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.”
In
this case, the applicant chose not to avail himself of that
alternative remedy, contrary to his previous suspension when he did
so successfully. It would seem to me that that does constitute
an attempt to circumvent the provisions of the Labour Relations
Act,
which provides for specific relief in cases such as this.
[1]
And
lastly, with regard to the allegation of unconstitutionality, as Mr
Kirstein
points out, the applicant attempts to rely on direct access to the
Constitution, which he cannot do. The right to fair labour practices
has been codified in the Labour Relations Act, and that Act makes
specific provision for the unfair labour practice in the guise
of a
suspension to be addressed in the appropriate forum, which is the
CCMA. For all those reasons also, I would not have
been
inclined to grant the relief sought.
With
regard to costs, I take into account that the applicant is still
employed by the Corporation and that the major skirmish in
this
ongoing battle is due to commence tomorrow. Should he be found
not to have committed the misconduct complained of, he
would have to
return to work in his senior position as CEO and a costs order at
this stage would in my view have a chilling effect
on that prospect.
I also take into account that the applicant is entitled to vindicate
his rights, although he has in this
case been unsuccessful.
-
- - - - - - - - - - -
O R D E R
In
all those circumstances, I order that the applicant be struck from
the roll for lack of urgency with no order as to costs.
-
- - - - - - - - - -
_________________________
STEENKAMP J
APPEARANCES
APPLICANT:
W Scholtz (attorney)
RESPONDENTS:
P Kirstein
Instructed by the State Attorney.
CERTIFICATE
OF VERACITY
I,
the undersigned, hereby certify that,
in as far as it is
audible
, the aforegoing is a
VERBATIM
transcription from the soundtrack of proceedings, as was ordered to
be transcribed by iAfrica Transcriptions and which had
been recorded
by Digital Court Recording Services by means of digital recording
equipment.
In
the matter between:
M
J NALE Applicant
and
NORTH
WEST DEVELOPMENT CORPORATION LTD
Respondent
Case No
J2532/15
J33 No / Client Ref
…
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RECORDED
AT
:
JOHANNESBURG
Court
:
Labour Court
Court
Nr
:
Stenographer
:
TRIAL
DATES
:
12 JANUARY 2016
ORDER
TO TRANSCRIBE
:
Transcribe JUDGMENT
TRANSCRIBER
:
AG VAN STADEN
SOUNDTRACK
:
Date and Time received: 21 JANUARY
2016
DATE
COMPLETED
:
26 JANUARY 2016
J406-ENVELOPE
INFORMATION
:
Not supplied
PLEASE
NOTE
:
1.
Court digital recording equipment not utilised to its full potential:
Specify
:
1.1
2.
Where no clear annotations are furnished, names are transcribed
phonetically.
iAfrica Transcriptions (Pty) Ltd
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[1]
Subsequent to this judgment having been delivered
ex tempore
,
the Constitutional Court handed own judgment in
Steenkamp v Econ
Ltd
[2016] ZACC 1
on 22 January 2016. Writing for the majority,
ZOndo J held that the LA does not contemplate unlawful – as
opposed to unfair
– dismissals. He said at para [136]: “I
conclude that invalid dismissals and a declaratory order that a
dismissal
is of no force and effect fall outside of the
contemplation of the LRA.” And he upheld the principle (at
para 137) that,
if a litigant’s cause of action is the breach
of an obligation provided for in the LRA, the litigant as a general
rule,
should seek a remedy in the LRA. It cannot go outside of the
LRA and invoke the common law for a remedy”. It seems to me
that the same should hold true for suspension s as it does to
dismissals.