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[2016] ZALCJHB 87
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Kekana v Mogalakwena Local Municipality (J1229/2015) [2016] ZALCJHB 87 (26 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE NO: J1229/2015
In
the matter between:
SHELLA
WILLIAM
KEKANA
Applicant
and
MOGALAKWENA
LOCAL
MUNICIPALITY
Respondent
Heard:
16 September 2015
Delivered: 26 February
2016
Summary:
Declarator: To set aside suspension and dismissal based on
unlawfulness only without establishing grounds
for unfairness. Case not made for relief sought.
Application dismissed.
JUDGMENT
BALOYI AJ
INTRODUCTION
[1]
The Applicant, Shella William Kekana
approached this Court following his dismissal that was preceded by
suspension from the position
of Municipal Manager. In essence
the Applicant is seeking an order declaring all decisions and actions
leading to his suspension
and dismissal unlawful and consequently set
aside. The relief sought is set
out in the notice
of motion as follows:
“
1.
Declaring that the following actions and/or decisions and/or
proceedings are unlawful and setting same
aside:
1.1
the precautionary suspension of the
applicant by the respondent during November to December 2014;
1.2
the institution of disciplinary proceedings
by the respondent against the applicant during December 2014;
1.3
the disciplinary hearing of the applicant
conducted from 14
th
January 2015 until 25 March 2015 and the outcome thereof on 25 March
2015;
1.4
the resolution adopted by the respondent’s
council on 31 March 2015 to dismissal the applicant.
1.5
The resolution adopted by the respondent’s
council at the council meetings on 12, 19 and 24 December 2014 as
well as 27 February
2015.”
[2]
The application is opposed with the
Respondent moving for dismissal of the application with costs.
At the commencement of
arguments it was indicated on behalf of the
Applicant that prayer 1.5 was no longer pursued. Reinstatement
was instead suggested
and the Respondent’s vigorous challenge
to such suggestion was impossible to overlook. Particular
regard is had to
the fact that the suggested reinstatement was not
put across as an amendment to the notice of motion. Since the
move towards
reinstatement was objected to, I do not deem it
necessary to deal with this issue in detail. It is worth
mention that the
Applicant had initially filed this application in
the High Court, North Gauteng and was dismissed for lack of
jurisdiction.
A separate review application presumably filed
simultaneously with the aforesaid dismissed application was at the
time this matter
was argued still pending.
FACTUAL
BACKGROUND
[3]
On 22
nd
July 2014 parties entered into a new fixed term contract of
employment as the then existed one was to expire on 31
st
July 2014. The appointment in terms of the new contract was
effective from 01
st
August 2014 for the period of three years. On 06
th
November 2014 the Municipal Executive Committee resolved to place the
Applicant on special leave. On 04
th
December 2014 the Municipal Council ratified or adopted actions taken
by the Executive Committee and imposed suspension on the
Applicant
instead of special leave. On 24
th
December 2014 he was served with notice to attend disciplinary
hearing together with charges with the hearing scheduled to take
place on 14
th
January 2015.
[4] On 14
th
January 2015 the hearing was postponed by agreement and scheduled to
run from 23
rd
to 27
th
February 2015 to enable parties to complete discovery process.
On 23
rd
February 2015 the hearing was postponed to 26
th
February 2015 at the Applicant’s instances. On 25
th
February 2015 the Applicant’s Attorney sent a letter to the
Respondent’s Attorney advising of his withdrawal in the
matter. On 26
th
February 2015 the Applicant’s Counsel withdrew from the matter
consequent to the Attorney’s withdrawal. The Applicant
did not attend the proceedings on the day in question. The
proceedings were adjourned and rescheduled to run for the period
between 23
rd
March 2015 and 27
th
March 2015 to enable the Applicant to secure legal representation.
[5] On 23
rd
March 2015 the Applicant did not appear, instead he sent a medical
certificate to the Respondent’s Attorney advising that
he was
hospitalized and would remain in hospital for the next twenty one
days. The said medical certificate in the form of
a letter was
heavily criticized for lacking certain qualities of a medical
certificate according to the Respondent, which the chairperson
accepted. As a result the disciplinary hearing chairperson
ruled that the hearing should proceed after having satisfied himself
that the Applicant did not show any exceptional circumstances to
warrant further postponement.
[6] The hearing
eventually proceeded in the Applicant’s absence and the
chairperson handed down the outcome of the said disciplinary
hearing
on 25
th
March 2015 conveying a guilty finding coupled with sanction of
dismissal. After conclusion of disciplinary hearing proceedings
and prior to the handing down of the disciplinary hearing outcome,
the Applicant attempted to obtain an interdict to the effect
that the
chairperson should not communicate his finding pending some review
application still to be filed. The application
for interdict
was to be heard on 26
th
March 2015 at 14h00. The said application was however abandoned
after it came to Applicant’s attention that the chairperson
had
already handed down his outcome. According to the Applicant the
ruling was deliberately handed down on 25
th
March 2015 in order to frustrate him towards obtaining the interdict
which application was filed on the same date. As noted
above,
the Applicant subsequently filed two applications in the North
Gauteng High Court one of which was disposed of on jurisdiction.
[7] It is also of
high importance to note that the disciplinary hearing chairperson
found the Applicant guilty as charged except
for charges 10 and 11.
The chairperson went on to impose a dismissal sanction without
submissions in mitigation on reasons
that the Applicant had already
waived his right to be heard. He saw no prospect of positive
response from the Applicant if
he was to be called to present
mitigating factors. He further took seriousness of the charges
into account. Now the
matter is placed before Court for relief
as stated above.
[8] It is highly
necessary to point out that the Applicant was summoned to the
disciplinary hearing to respond to nineteen charges
of misconduct and
part of the charges placed before this Court are as follows:
“
1.
CHARGE 1: Failure To Carry Out
Functions And/Or Duties And Breach Of The Municipal Structures Act,
1998.
1.1 On 6 July 2014, 23
councillors of the Municipality were expelled by their
political party being the
African National Congress (ANC)
(hereinafter the “
expelled councillors”
). A
copy of the list of the names of the expelled councillors is attached
hereto marked “A”.
1.2 By virtue of such
expulsions, these individuals ceased to be councillors of the
Municipality. Notwithstanding
the expulsion of these
councillors;
1.3 You failed/ and
or refused to:
(a) Inform the chief electoral
officer of the fact that the 23 expelled councillors ceased to
hold office.
(b) Declare
vacancies created by the expulsion of the 23 expelled councillors.
(c)
Inform the Provincial Electoral Officer of the Independent Electoral
Commission of the expulsion of
the 23 individuals and to set in
motion the process to replace the public representative councillors
(hereinafter the “PR
Councillors”) and to hold
bi-elections for ward councillors to replace the 23 expelled
councillors.
1.4
Your conduct as afore-stated constitutes a breach of the Municipal
Structures Act, 1998 and a failure on your part
to carry out your
functions and duties as Municipal Manager.
2.
CHARGE 2: Incurring Irregular And/Or
Fruitful And Wasteful Expenditure
2.1
Despite the expulsion of the 23 individuals as councillors on 6 July
2014, confirmed by the ANC
National Executive Committee on 23
September 2014, you instructed and/or authorised the continued
payment of the monthly salaries
for the 23 expelled councillors by
the Municipality, up to as lately as November 2014.
2.2
Alternatively you failed and/or refused to remove the expelled
councillors from the Municipality’s
payroll.
2.3 This
resulted in payment of these salaries being made to the expelled
councillors.
2.4
Your conduct as afore-stated constitutes gross dereliction of duty,
alternatively gross insubordination,
and/or fruitless and wasteful
expenditure or irregular expenditure in contravention of the
Municipal Finance Management Act (MFMA).
3.
CHARGE 3: Conduct
Unbecoming Of A Municipal Manager And/Or Accounting Officer And/Or
Breach Of Duty To Act In The Best Interest
Of The Municipality
3.1 On 21 July 2014,
you attended and participated in a special council meeting which
resulted in a resolution
being passed by the Municipal Council
resolving as follows:
(a) Authorizing you to appoint a
legal representative/legal team to institute legal action to protect
the interest of certain
councillors.
3.2 Your conduct as
afore-stated constitutes conduct unbecoming of a Municipal Manager
and an Accounting Officer
in that:
(a) The attendees of the special
council meeting included the 23 expelled councillors whom were not
entitled to attend such
meeting due to their expulsion. At the
time you were aware that the expelled councillors were expelled and
therefore no longer
councillors of the Municipality, this fact
notwithstanding, you participated in the meeting without objection.
3.3
Your conduct also constitutes a breach of your duty to act in the
best interest of the Municipality in that
you participated and/or
were in approval of a resolution authorising appointment of legal
representatives to represent individuals
who were no longer
councillors of the Municipality, when there was no duty on the
Municipality to do so.
4.
CHARGE 4:
Irregular And/Or Unauthorised Expenditure And/Or Failure To Act In
The Best Interest Of The Municipality
4.1 Pursuant to the
resolution passed on 21 July 2014, you deposed to affidavits in the
High Court applications
instituted under the following case numbers:
(a)
80496/2014
(b)
80836/2014
(c)
82129/2014
(d)
84518/2014
(e)
86390/2014
(f)
89657/2014
4.2 These High Court
applications were in furtherance of litigation instituted by the
expelled councillors to
challenge their expulsion. This
litigation was in connection with a private dispute between the
expelled councillors and
the political party to which the expelled
councillors belonged.
4.3 Through your
action of deposing to the affidavits in the aforementioned
applications, you involved the Municipality
in litigation in which it
had no direct interest.
4.4 You also
expressly, alternatively, tacitly authorised and/or approved the
payment of the legal expenses incurred
by the expelled councillors in
the aforementioned high court applications.
4.5 Your conduct
aforesaid constitutes:
(a)
Failure to act in the best interest of the Municipality.
(b)
Irregular and/or unauthorised expenditure of Municipal funds.
5.
CHARGE 5: Irregular Expenditure And/Or
Fruitless And Wasteful Expenditure
5.1 You authorised
and/or approved processing of payment to the legal representatives of
the expelled councillors
for litigation under the following High
Court case number:
(a)
65154/2014
(b)
73549/2014
(c)
80496/2014
(d)
80836/2014
(e)
82129/2014
(f)
84518/2014
(g)
86390/2014
(h)
89657/2014
5.2 These High Court
applications were in furtherance of litigation instituted by the
expelled councillors to
challenge their expulsion from the ANC.
This litigation was in connection with a private dispute between the
expelled councillors
and the political party to which the expelled
councillors belonged.
5.3
Your conduct as afore-stated constitutes the incurrence of irregular
expenditure on behalf of the Municipality
and/or fruitless and
wasteful expenditure.
6.
CHARGE 6: Failure And/Or Refusal To Table
The Auditor General’s Report For The Financial Year 2012/2013
6.1 The Auditor
General’s report for the financial year of 2012/2013 dated
November 2013 was provided to
you. Despite receipt of the
report, you have failed and/or refused to table the Report before the
Municipal Council as required.
6.2
Your conduct as afore-stated constitutes gross dereliction of duty
and therefore gross misconduct.
7.
CHARGE 7: Improper And/Or Unauthorised Use
Of Municipal Funds And/Or Resources
7.1 During MAY
alternatively JUNE 2014, you irregularly and in contravention of
the Municipality’s supply
chain management policy in
contravention of section 217 of the constitution of the Republic of
South Africa Act 108 of 1996 (“the
Constitution”)
appointed or caused to be appointed security offices or security
company at the Municipality’s cost
for your personal protection
and in furtherance of the factional fights and for the protection of
the expelled councillors to which
you have so firmly aligned
yourself. The purpose of appointing the said security officers
or company was to:
(a) Prevent councillors
from gaining access to Council Chamber and therefore prevented them
from performing their duties
and responsibilities as duly elected
councillors.
(b) Guard expelled
councillors.
7.2
Your conduct constitutes gross dereliction of duty, alternatively
gross insubordination, and gross misconduct.
8.
CHARGE 8: Gross Insubordination
8.1
You have made yourself guilty of gross insubordination when you
expressly and by conduct, refused to recognise
the duly elected
councillors of the Municipality as councillors and instead recognised
the expelled councillors as councillors.”
APPLICANT’S
CASE
[8] Unlawfulness is
where the Applicant’s case is rooted. Lack of authority
on the bodies which made decisions sought
to be set aside resulted in
non-compliance with regulations and such decisions fall to be set
aside based on legality. The
Applicant effectively contends
that since administrators have no inherent powers, their unlawful
decisions can be set aside without
visiting elements of their
discretion. In support of this argument the Applicant relied on
Biyase
v Sisonke District Municipality & Another
[1]
and Hoexter
[2]
.
[9] In essence the
Applicant attacked the Respondent’s decisions for not being
compliant with regulations as set out in Municipalities
System Act 32
of 2000 and consequently the manner in which the disciplinary hearing
was conducted. In addition or parallel
to the declaratory order
sought the Applicant called upon the court to exercise its review
powers in terms of section 158(1)(h)
of the LRA read with section
158(1)(a)(iv). The Applicant in support of this proposition
relied on
Hendricks
v Overstand Municipality
[3]
as well as
Manamela
v Department of Co-operative Governance Human Settlements &
Traditional Affairs, Limpopo Province
[4]
.
According
to the Applicant reinstatement kicks in as soon as suspension and
dismissal are set aside as the effect of the declarator
will bring
status
quo,
that
is, as if suspension and dismissal had not happened.
Applicant’s further arguments revealed that the challenge
to
suspension would in fact kick in upon successful challenge to
dismissal.
RESPONDENT’S
CASE
[10] The
Respondent’s attack to Applicant’s case is laced with
several preliminary issues. In the fore front is
plea of lack
of jurisdiction in that this Court cannot deal with dismissal dispute
as forum of first instance. Furthermore
the relief sought by
Applicant in setting aside Council resolutions does not fall within
the jurisdiction of this Court.
On proper application of
section 191 of the Labour Relations Act the Applicant should have
referred the dispute to the CCMA or
Bargaining Council.
[11]
A plea of suspension being moot forms part of jurisdictional points
raised by the Respondent on the basis that it has since
been
superseded by the dismissal. Lastly the relief sought against
resolutions formed part of a pending matter before the
High Court.
An attack on the notice of motion for not conforming with standards
of review applications as set out in Rule
7A of the rules of this
Court and/or procedures in terms of PAJA called for dismissal of the
application for being fatally defective.
In so far as the
merits, the Respondent’s contention is that it followed proper
procedures and had good reason to dismiss
the Applicant in the light
of serious charges against him.
EVALUATION
[12] In terms of
section 158(1)(a) this Court may make appropriate order including a
declaratory order. Furthermore the Court
may in terms of
section 158 (1)(h) review any decision taken or act performed by the
state in its capacity as employer on such
grounds as are permissible
in law. These two provisions are relevant for consideration of
this application when following
the path created in terms of
Applicant’s papers. Given the background facts of the
matter and sequence of events as
placed before this Court, what
logically follows is interrogation on when and where the remedies in
the form of declarator or review
applicable in so far as the case for
the Applicant is concerned. Secondly whether the point of
lateness raised by the Respondent
regarding the need for condonation
application in respect of challenge to the suspension is sustainable.
[13]
Before getting deeper into the matter it is imperative to move the
issue of jurisdiction out of the way. Without hesitation
this
Court has jurisdiction to pronounce on unlawfulness of the dismissal
claim as a forum of first instance in the light of provisions
of
section 157 of the Labour Relations Act. Accordingly there is
no jurisdictional barrier for this Court to deal with this
matter.
Since prayers for setting aside resolutions adopted by Council were
abandoned, jurisdictional issues raised in that
respect thus fall
away. There is therefore no need to make determination in this
regard.
[14] Turning to the
substance of this matter, it is now a settled position that when
exercising the discretion when dealing with
a declarator where
unlawfulness of suspension or dismissal is an issue, the Court is
also required to visit the unfairness part
of the suspension or
dismissal in order to arrive at unlawfulness. In
Member
of the
Executive
Council for Education North West Government v Gradwell
[5]
the employer’s justifiable reason to believe that the employee
had engaged in serious misconduct is key to the finding towards
unlawfulness or otherwise. This reasoning was followed with
approval in
Ravhura
v Zungu NO and Others
[6]
wherein the Court had this to say:
“
[11]
Accordingly, the presence of unlawfulness on the conduct of one of
the contracting parties in an employment relationship will
no
ipso
facto
result in the other party’s
entitlement to the
status quo
order
being granted without the consideration of the fairness of such
conduct. In dismissal cases at least, there appears
to be no
evidence of this Court adopting an approach that unlawfulness is
stand-alone ground for it to intervene in favour of the
aggrieved
party, for instance to the exclusion of the considerations of
fairness. Hence, a need that disputes in dismissal
cases be
referred to conciliation first. In my view, a warning has
already been given against the consideration of unlawfulness
as a
stand-alone ground, in the case dealing though with allegations of
unlawful suspensions, of
Member of
Executive Council for Education, North West Provincial Government v
Gradwell
where the Court held:
“…
the
judge erred in his approach to determining the lawfulness of a
suspension in terms of para 2.7(2). His choice not to consider
the serious allegations against the respondent was mistaken. As
a general rule, a decision regarding the lawfulness of a
suspension
in terms of para 2.7(2) will call for a preliminary finding on the
allegations of serious misconduct as well as determination
of the
reasonableness of the employer’s belief that the continued
presence of the employee at the workplace might jeopardise
any
investigation etc. The justifiability of a suspension
invariably rests on the existence of a prima facie reason to believe
that the employee committed serious misconduct. Only once that
has been established objectively, will it be possible meaningfully
to
engage in the second line of enquiry (the justifiability of denying
access) with the requisite measure of conviction.
The nature,
likelihood and the seriousness of the alleged misconduct will always
be relevant considerations in deciding whether
the denial of access
to the workplace was justifiable.”
[12] As a general
rule therefore, a decision regarding the lawfulness of a dismissal
will call for a preliminary finding on the
allegations of serious
misconduct on the part of the Applicant as well as a determination of
the fairness of the employer’s
dismissal”.
[15]
Save the Applicant’s denial of allegations as contained in the
charges and clinging on lack of authority regarding initiation
of
processes which led to his suspension and dismissal, he remained
silent on the key aspect around fairness as such, which is
a stepping
stone towards finding on unlawfulness. It does not seem that
the Applicant had intentions to react to the allegations
of
misconduct which are undoubtedly serious. Insofar as there are
disputes of fact particularly around Applicant’s
denial coupled
with silence on facts regarding fairness, then on the principles set
out in
Plascon-Evans
[7]
,
the Applicant
is
not entitled to the declaratory relief he seeks which is final in
nature.
[16]
In
NDPP v
Zuma
[8]
,
the court reaffirmed the principle in paragraph 26 at page
290
as follows:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless
the circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant’s (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together
with the facts
alleged by the latter, justify such order. It may be different
if the respondent’s version consists
of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable
that the court is justified in
rejecting them merely on the papers. The court below did not
have regard to these propositions
and instead decided the case on
probabilities without rejecting the NDPP’s version.”
[17] It is not in dispute that the
Applicant absented himself from the disciplinary proceedings on 26
th
February 2015, the date on which his Senior Counsel withdrew from the
matter. Regarding his non-appearance on 23
rd
March
2015, the Applicant was according to the
medical
certificate still in the first week of his 21 days of
hospitalization. Instead of utilizing the new legal team to
represent him in the disciplinary hearing in accordance with previous
postponement ruling, he elected to issue instructions to
file an
application to interdict the disciplinary hearing chairperson from
making or communicating his disciplinary hearing ruling
pending
review application to be filed later. It is worth noting that
the application was filed with the Registrar of the
North Gauteng
High Court at Pretoria on 25
th
March 2015.
[18]
The cumulative effect of the Applicant’s conduct is that he was
more obsessed with applying all means to avoid disciplinary
hearing,
which is where dispute on fairness of his dismissal emanates.
He was never concerned with clearing his name in the
simple
disciplinary process but saw it necessary to bombard the Respondent
with constant litigation. This was in any event
within his
rights, however the matter as it stands turns on issues of procedure
which he had an opportunity to raise objections
before the
chairperson about the disciplinary proceedings not being properly
constituted or otherwise. In the absence of
the Applicant not
having dealt with fairness as pointed above, the challenge to
procedures by way of declaratory is not appropriate.
Arbitration
as argued by the Respondent is the route to take since such challenge
to procedure is in fact rested on unfairness
of such procedures.
[19] I am thus in
agreement with what the court held in Manamela’s
[9]
case where the Court had this to say in paragraph 55.3;
“…
.
The Court should further at all times carefully consider what the
actual and true nature of the contention of invalidity and
unlawfulness by the applicant is, in order to avoid a designed
circumvention of the provisions of the LRA relating to suspensions
under the guise of unlawfulness or invalidity, where it is in fact is
an issue of unfairness.”
[20] In the
circumstances I find no reason to suggest that the Applicant made out
a case for the declaratory relief sought.
The same goes onto
the apparent review sought as remedy available to the Applicant.
While noting that the indirect review
may find its way within a
declarator, in this instant matter it is not to be the case.
Certainly the Applicant’s application
appears to be lacking in
essential considerations for the review applications in the following
respects;
(i)
the review is not unambiguously prayed for
in the notice of motion except for the desired outcome, ‘
set
aside’
;
(ii)
the persons whom their decisions are sought
to be reviewed are not cited in the proceedings nor called upon to
oppose the application
if they wished.
(iii)
there is no direction calling upon the
decision makers whose decisions are subject matter of the application
to dispatch records
nor indication of waiver and/or dispensing with
records of such proceedings leading to the decisions sought to be
reviewed.
(iv)
the submissions towards unlawfulness sought
through declaratory as set out in Applicant’s papers do not
establish grounds
of review.
[21] Since the
unlawfulness of the dismissal was not proved, the claim on
unlawfulness of suspension would have the similar ending
as
determination depended on establishment of dismissal being unlawful.
What follows is that the argument for a need to first
condone the
lateness of prosecution of suspension claim will not require any
determination. For the reasons stated above
the application
falls to be dismissed. Both parties sought costs against each
other. In the light of no prospect of
future relationship to be
nurtured between the parties, there is no reason why costs should not
follow the result. There
is no persuasive submission warranting
awarding costs to include cost occasioned by use of two Counsels.
[22] In the premises the following
order is made;
22.1
The application is dismissed.
22.2
The Applicant is ordered to pay the Respondent’s costs.
___________________
Baloyi AJ
Acting
Judge of the Labour Court of South Africa
Appearances
:
For
the Applicant: Adv. J H Dreyer
SC with Adv. JAL Pretorius
Instructed
by:
Mapotene Mangena Inc.
For
the Respondent: Adv. W Mokhare SC with Adv. T Mokhatla
Instructed
by:
Hogan Lovells (SA) Incorporated as Routledge
Modise Inc.
[1]
[2012] 33
ILJ 598 (LC)
[2]
.Cora
Hoexter: Administrative Law in South Africa, 2
nd
Ed.
[3]
(2015) ILJ
163 (LAC).
[4]
Unreported,
case number J1886/2013
[5]
[2012] 33
ILJ 203 (LAC)
[6]
[2015] 4
BLLR 423 (LC)
[7]
[1984] ZASCA 51
;
1984 (3) SA
623
A
[8]
[2009] ZASCA 1
;
2009 (2) SA 277
SCA
[9]
See
footnote 4 above.