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[2016] ZALCJHB 24
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Dintwe v Ditsobotla Local Municipality and Another (J65/16) [2016] ZALCJHB 24 (29 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: J65/16
In
the matter between:
LEETO JEREMIAH
DINTWE
Applicant
and
DITSOBOTLA LOCAL
MUNICIPALITY
SS NNETE (ACTING
MUNICIPAL MANAGER)
First Respondent
Second
Respondent
Heard:
28 January 2016
Delivered:
1 February 2016
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The Applicant was granted urgent relief
under Case Number J2308/15 on 23 December 2015 by Nkutha-Nkontwana AJ
in terms of which
his suspension was set aside having been declared
invalid and unlawful and of no force. The First Respondent
(Municipality) was
ordered to reinstate the Applicant with immediate
effect and to comply with his contract of employment and conditions
of service.
[2]
Subsequent to that order, the Municipality
has since filed an application for leave to appeal. Nevertheless, the
Applicant has again
approached the Court on an urgent basis. He
relies upon the provisions of Rule 49 (11) of the Uniform Rules of
Court in seeking
relief that the order granted by Nkutha-Nkontwana AJ
be executable, and that its operation not be suspended pending the
application
for leave to appeal by the Respondents against that
order, and any intended appeal, should leave to appeal be granted.
[3]
The
Respondents have opposed the application on the grounds that firstly,
they have good prospects of success in the leave to appeal,
secondly
that the Applicant has not satisfied the requirements of section 18
of the Superior Court Act
[1]
,
and the requirements of Uniform Rule 49 (11), and thirdly that the
continued presence of the Applicant in the working place would
be
detrimental to the stability of the Municipality.
[4]
Whether the application was urgent was not
seriously challenged by the Respondents. In the light of the factors
considered by Nkutha-Nkontwana
AJ in according the matter urgency in
the first place, I will further in the light of the factors as shall
be apparent from below,
equally accord the matter urgency.
Background:
[5]
The salient facts pertinent to this
application are common cause safe for one issue that will be pointed
out shortly. The Applicant
is the Municipality’s Chief
Financial Officer. He was employed on a five years’ term with
effect from 1 November 2012.
His appointment was made in terms of
section 56 (1) (a) of the Municipal Systems Act, and his terms and
conditions of service are
regulated by the Local Government:
Disciplinary Regulations for Senior Managers, 2010 (the Regulations)
[6]
The Second Respondent (Nnete), was the
Municipality’s erstwhile Acting Municipal Manager. He has since
been replaced by Mr.
Monde Juta (Juta), who was appointed as
Municipal Manager with effect from 17 November 2015. Juta deposed to
the answering affidavit
in this application.
[7]
The
Applicant was informed by Nnete via an internal memorandum dated 9
November 2015 that he was suspended from duty with immediate
effect.
The suspension was effected in terms of Regulation 6 of the
Regulations. In the memorandum, the Applicant was also advised
that
he was initially afforded an opportunity on 29 July 2015 to submit
written submissions to show cause why he should not be
suspended
[2]
.
He was informed that his response was not acceptable to management.
Aggrieved at his suspension, the Applicant had approached
the Court
on an urgent basis, leading to the order that he seeks to execute.
[8]
Having obtained the order, the Applicant
sought to report for duty on 11 January 2016 but was informed that
the Municipal Manager
was unavailable to facilitate his return. On 18
January 2016, the Respondents served an application for leave to
appeal on the
Applicant’s attorneys of record. On 19 January
2016 the Applicant was called upon to attend to the Municipality’s
premises
to meet with the Municipal Manager, Juta.
[9]
Flowing from the above meeting of 19
January 2016, Juta then sent correspondence to the Applicant
confirming their earlier discussions.
He had recorded that an
agreement was reached in terms of which the Applicant would be placed
on special leave. The Applicant was
further informed that the
investigative process pertaining to the allegations of misconduct
against him was concluded, and that
the Municipality would withdraw
its intention to appeal against the order granted on 23 December
2015.
[10]
The Respondents contend that there is a
material dispute of fact in regards to the discussions between the
Applicant and Juta. It
is contented that there was an oral agreement
that the Applicant would be placed on special leave pending the
outcome of a disciplinary
enquiry, and that on that ground alone,
this application should be dismissed.
[11]
The Applicant’s contention on the
other hand was that during the discussions with Juta, the latter had
made a proposal that
he should take special leave until the
conclusion of the intended disciplinary enquiry. He had however
requested that the proposal
be reduced to writing, and also that he
be served with a notice and charge sheet in respect of the
forthcoming disciplinary enquiry
upon which he would be in a position
to obtain legal advice.
[12]
The Applicant’s attorneys of record
through correspondence to the Respondents on 20 January 2016 denied
that any such agreement
was reached, and insisted on compliance with
the Court order. On the same date, the Applicant was formally charged
for alleged
acts of misconduct, and was furnished with a copy of a
notice to attend a disciplinary enquiry and charge sheet. The
Applicant
acknowledged receipt of the notice and the charge sheet.
The enquiry is scheduled to take place on 1 February 2016.
Notwithstanding
these factors, the Applicant approached the Court
with this urgent application on 22 January 2016.
The
legal framework:
[13]
The
Rules of the Labour Court are silent in regards to whether an
application for leave to appeal should stay proceedings. This
Court
does not have a similar provision like Rule 49(11)
[3]
of the High Court Rules. However, in terms of Rule 11(3) of the Rules
of the Court, if a situation for which the Rules do not provide
arises in proceedings or contemplated proceedings, the Court may
adopt any procedure that it deems appropriate in the
circumstances
[4]
.
[14]
This
Court has over the years reasoned that it should adopt Rule 49(11) of
the High Court Rules where circumstances require
[5]
.
Thus the Court may on application, and in exercising its discretion
order that a judgment be executed despite the fact that there
is a
pending appeal or even a petition to the Labour Appeal Court.
[15]
The
factors to be considered in such applications were identified in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
[6]
as follows:
“
The
Court to which application for leave to execute is made has a wide
general discretion to grant or refuse leave and, if leave
be granted,
to determine the conditions upon which the right to execute shall be
exercised (see
Voet
,
49.7.3;
Ruby’s Cash Store (Pty)
Ltd v Estate Marks and Another
[1961
(2) SA 118
(T)] at p. 127). This discretion is part and parcel of the
inherent jurisdiction which the Court has to control its own
judgments
(cf.
Fismer v Thornton
1929 AD 17
at p.19). In exercising this discretion the Court should,
in my view, determine what is just and equitable in all the
circumstances,
and, in doing so, would normally have regard,
inter
alia
, to the following factors:
(1)
the potentiality of irreparable harm or prejudice
being sustained by the appellant on appeal (respondent
in the
application) if leave to execute were to be granted;
(2)
the potentiality of irreparable harm or prejudice
being sustained by the respondent on appeal (applicant
in the
application) if leave to execute were to be refused;
(3)
the prospects of success on appeal, including more
particularly the question as to whether the appeal is
frivolous or
vexatious or has been noted not with the
bona fide
intention
of seeking to reverse the judgment but for some indirect purpose,
e.g. to gain time or harass the other party; and
(4)
where there is the potentiality of irreparable
harm or prejudice to both appellant and respondent, the balance
of
hardship or convenience, as the case may be.”
[7]
The
potentiality of irreparable harm or prejudice:
[16]
The submissions made on behalf of the
Applicant in this regard were as follows;
16.1
He was now in a worse position in relation
to the prejudice which he would suffer and stood to suffer, as the
Municipality was entitled
as a consequence of the effect of the
application for leave to appeal, to lawfully refuse his return to the
workplace. He contends
that this scenario may endure for months,
considering the Respondents’ entitlement to file a Petition for
Leave to appeal,
should their application for leave to appeal be
refused.
16.2
The Respondents’ application for
leave to appeal would not be heard before March 2016, and his
suspension would have already
lapsed by 9 February 2016 as a
consequence of Regulation 6 (6) of the Disciplinary Regulations for
Senior Managers 2010. As such,
and pending a possible petition for
leave to appeal, he would be deprived of his right to be productively
employed and to perform
in terms of his performance contract;
16.3
His suspension was offensive to his dignity
and reputation, sense of worth and self-esteem, and that the
prejudice related thereto
could not be repaired in any other way than
to reinstate him. These circumstances and potential harm remained
present and had in
fact escalated given the Respondents’
application for leave to appeal and the further lapse of time brought
about as a result
thereof.
16.4
The relief afforded to him in all
probability stands to become moot as a consequence of any delays
associated with the Respondent’s
intended appeal process,
particularly in view of the fact that the application for leave to
appeal was not brought on an urgent
basis;
16.5
The Municipality would suffer no
irreparable harm should he be granted leave to execute the order, and
that instead, it would suffer
harm if he is not allowed to work in
the interim, as the failure to allow such, will be regarded as
fruitless and wasteful expenditure
in terms of the Municipal Finance
Management Act 56 of 2003.
[17]
The Respondents’ main contentions on
the other hand were as follows;
17.1
Although the Applicant contends that his continued suspension impacts
on his dignity, there has to be a balance
with the harm to the
Municipality;
17.2
The Municipality cannot allow the Applicant into the workplace prior
to the disciplinary hearing being completed
and even though the
investigation into his misconduct was complete;
17.3
The Respondents had complied with the time frames allowed for
applying for leave and fully intent to prosecute
the appeal;
17.4
The disciplinary enquiry is scheduled to take place on 1 February
2016, and thus the Applicant would not
suffer any harm if the order
is not prosecuted.
[18]
In assessing the question of irreparable
harm, central to the main judgment is the primary finding that the
suspension of the Applicant
was declared to be invalid and unlawful
on account of its non-compliance with Regulation 6 of the
Regulations. This was so in that
he was not given an opportunity to
be heard before he was suspended and/or given full details for the
rationale for his suspension.
This finding was premised on the
fact that having sought to place the Applicant on suspension on 29
July 2015, the Municipality
nevertheless did not do so having
received the Applicant’s terse response on 26 August 2015 as
already alluded to elsewhere
in this judgment. The Applicant was
however suspended on 9 November 2015 without being afforded an
opportunity to be heard before
he was suspended.
[19]
During the hearing of this application, I
had raised with both Mr. Scholtz and counsel, Adv Saloojee for the
Respondents whether
this application was not moot in the light of the
fact that the investigations into the allegations of misconduct
against the Applicant
had been completed, and the fact that the
disciplinary enquiry was scheduled to commence on 1 February 2016. In
my view, and to
the extent that the disciplinary enquiry may proceed
as intended, the Applicant would in effect be reinstated in his
position on
1 February 2016,
albeit
for a different reason other than to render his services.
[20]
The Applicant’s response however was
that the scheduling of the disciplinary enquiry did not render his
suspension lawful.
It was further pointed out on his behalf that the
disciplinary process instituted against him was in any event
unlawful, in that
it had not been instituted in accordance with
inter
alia
, the Financial Misconduct
Procedure and Criminal Proceedings Regulations (since the charges
include allegations of financial misconduct).
[21]
I am in agreement with the contentions made
on behalf of the Applicant that the scheduling of the disciplinary
enquiry does not
make his suspension lawful. Whether that
disciplinary enquiry would be lawful or not is however not a matter
before the Court to
determine. I am equally in agreement with the
submissions made on behalf of the Respondents that there is a need
for a balance
between the impact of the suspension on the Applicant’s
dignity, reputation, sense of worth and self-esteem, and the harm
to
the Municipality should he report for duty. This balance needs to be
assessed further in the light of the allegations of misconduct
made
against the Applicant. It is however important to bear in mind that
these allegations, despite the conclusion of the investigations
remain mere allegations, and that as matters stand, the suspension
remains unlawful. Other than issues surrounding the impact of
the
suspension on his dignity, reputation and self-worth, it was further
common cause that the Applicant is currently suspended
with pay.
[22]
Taking the above factors into account, it
is my view that inasmuch as there might be a compelling case made by
the Respondents as
to why the Applicant should not be allowed back to
work, it is the Applicant who would continue to suffer irreparable
harm as a
consequence of the unlawful nature of his suspension. As
can be gleaned from the judgment of Nkutha-Nkontwana AJ, the
Respondents
made no effort to dispute that the suspension was not
preceded by an opportunity afforded to the Applicant to be heard. In
the
light of the unlawful nature of the suspension, the Applicant
would ordinarily be entitled to execute the order.
Balance
of convenience:
[23]
I accept that the allegations of misconduct
made against the Applicant are
prima
facie
serious. However as already
indicated, the investigations into these allegations have been
completed, and the presence of the Applicant
at the workplace would
not in any meaningful way impact on any intended disciplinary process
or investigations against him. It
is further my view that in the
light of the unlawful nature of the suspension as already alluded to,
it would be convenient for
the Applicant to be reinstated as ordered
by Nkutha-Nkontwana AJ, and for the Respondent, as correctly pointed
out by Mr. Scholtz,
to rectify the procedural defects pointed out.
[24]
It is therefore my view that to not order
the execution of the order in circumstances where there are clear
legal and procedural
issues to dispense with pending the application
for leave to appeal would clearly not be in the interests of either
the Applicant
or the Municipality. Whilst the leave to appeal is
pending, and in the absence of any indication that the Municipality
has attempted
to correct the flaws in its intended disciplinary
process against the Applicant, and in particular his suspension, it
would imply
that the Applicant would remain suspended with pay until
the leave to appeal is finally dispensed with. This can definitely
not
be an ideal situation for both parties, let alone members of the
public the Municipality is meant to serve. To this end then, the
and
for reasons other than those advanced by the Applicant, the balance
of convenience favours that the order be executed.
Prospects
of success on appeal:
[25]
The Municipality contended that it has good
prospects of success in the leave to appeal in that
inter
alia
, Nkutha-Nkontwana AJ failed to
take into account a material provision of the Municipal Systems Act
with regard to condoning the
Applicant’s suspension and the
requirement to provide reasons for not being suspended was satisfied
[26]
In response, it was contended on behalf of
the Applicant that the application for leave to appeal was solely
directed against the
cost orders granted in terms of the order by
Nkutha-Nkontwana AJ. In this regard, it was pointed out that in the
Application for
Leave to Appeal, the Respondents stated that;
“
The
grounds on which leave to appeal against the cost orders are sought
are the following:”
[27]
It was further submitted on behalf of the
Applicant that there was a real possibility that the subject matter
will become moot by
the time that any intended appeal in relation to
the suspension of the Applicant is heard.
[28]
Other than the factors raised on behalf of
the Applicant, which in my view have merit, I am not convinced that
based on the findings
made by Nkutha-Nkontwana AJ and the grounds
upon which leave to appeal is sought, that the Respondent have
prospects of success.
The Respondents’ failure to afford the
Applicant a hearing before the suspension was imposed does not appear
to be in contention,
and it is doubted that any justification in this
regard as pleaded in the application for leave to appeal would find
favour at
the appeal stage. To this end, I am not convinced that the
Respondents’ prospects of success on appeal might be
particularly
good.
Conclusions:
[29]
I have further had regard to the Respondents’ contentions that
the application ought to be dismissed in the light of
the verbal
agreement reached between the Applicant and Juta on 19 January 2016
that the Applicant would be placed on special leave
pending the
disciplinary hearing. I have no reason to doubt Juta’s
bona
fides
that such an agreement was reached, and there is no basis
for any conclusion to be reached that these contentions were made to
mislead the Court. This verbal agreement however does not address the
underlying cause of Nkutha-Nkontwana AJ’s findings and
order.
Thus nothing turns on this agreement.
[30]
To conclude then, having had regard to the irreparable harm the
Applicant stands to suffer as a consequence of the unlawfulness
of
his suspension, and further having concluded that the Respondents’
prospects on appeal appear to be remote, I accordingly
find that, the
balance of convenience favours the granting of leave to execute the
order of Nkutha-Nkontwana AJ’s order,
despite the application
for leave appeal launched by the Respondents. Further having had
regard to considerations of law and fairness,
and in particular the
circumstances and background of this matter, I do not believe that a
cost order is called for in this matter.
Accordingly, the following
order is made;
Order:
i.
The Applicant’s non-compliance with
the Rules relating to form, service and times, is condoned and he is
permitted to bring
this application on an urgent basis in terms of
Rules 8(1) and (2);
ii.
The Applicant is granted leave to execute
the judgment of Nkutha-Nkontwana AJ under Case Number J2308/15 dated
23 December 2015,
pending the Respondents’ application for
leave to appeal.
iii.
There is no order as to costs.
__________________
Tlhotlhalemaje,
J
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Mr WP Scholtz of Scholtz Attorneys
On
behalf of the Respondents: Adv. YF Saloojee
Instructed
by:
Phambani Mokone Inc
[1]
No
10 of 2013
[2]
His
response on 26 August 2015 was to submit a terse reply to the effect
that;
“
Your
letter of intention to suspend bears reference. The allegations
reflected are incorrect and unfortunate. Hope you find the
above in
order”
[3]
Rule
49 (11) of the High Court Rules provides that:
“
Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order of
a court
has been made, the operation and execution of the order in question
shall be suspended, pending the decision of such
appeal or
application, unless the court which gave such order, on the
application of a party, otherwise directs.”
[4]
See
L'Oreal
South Africa (Pty) Ltd v Kilpatrick and Another
(J1990/2014) [2014] ZALCJHB 365 (25 September 2014) and instances
referred to in paragraphs [23] to [26]
[5]
See
Christo
Bothma Finansiële Dienste v Havenga and Another
(2010)
31 ILJ 93 (LC) and authorities referred to in
National
Entitled Workers Union (NEWU) and Another v Director Commission for
Conciliation Mediation and Arbitration and Others
(2011) 32 ILJ 2095 (LAC) at para [10] to [13]
[6]
1977
(3) SA 534
(A) at 545C-G
[7]
At
para [15]. Also referred with approval in
Minister
of Health and Others v Treatment Action Campaign and Others
(No 1)
[2002] ZACC 16
;
2002 (5) SA 703
(CC) at para
[10]