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[2016] ZALCCT 52
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Barnard v Kannaland Municipality and Others (C714/2016) [2016] ZALCCT 52 (23 November 2016)
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
No:
C714/2016
REPORTABLE
In the
matter between:
HENDRIK
BARNARD
Applicant
and
KANNALAND
MUNICIPALITY
First
Respondent
MAGDELENA
BARRY
Second
Respondent
PHILLIP
ANTONIE
Third
Respondent
ALETTA
THERON
Fourth
Respondent
JOSLIN
JOHNSON
Fifth
Respondent
JEFFREY
DONSON
Sixth
Respondent
HYRIN
RUITERS
Seventh
Respondent
WERNER
MASHOA
Eighth
Respondent
R
STEVENS
Ninth
Respondent
Heard: 11 November
2016
Delivered: 23
November 2016
JUDGMENT
GOLDEN, AJ
Introduction
[1]
The applicant launched an urgent application on 25 October 2016
challenging his suspension from employment as the Director:
Corporate
Services of the Kannaland Municipality (“the Municipality”),
the first respondent in the application.
The applicant seeks an
order for his suspension to be set aside on the basis that it is
unlawful. The lawfulness of the applicant’s
suspension
arises from an interpretation of the Local Government: Disciplinary
Regulations for Senior Managers 2010 (“the
Regulations”).
[2]
The question to be decided is whether the applicant’s
suspension should be set aside on the basis that the Municipality
failed to comply with the relevant provisions of the Regulations.
Background
Facts
[3]
It is not necessary to recite all the facts. I will accordingly
only refer to the most salient facts to which the legal
issues
relate.
[4]
The first respondent’s Municipal Council convened a special
meeting on 16 September 2016 wherein a decision was taken,
in
principle, to suspend the applicant as a precautionary measure based
on the allegations of misconduct received against him regarding
the
distribution of a private and confidential report addressed to the
Executive Mayor.
[5]
The allegation of misconduct and the intention to suspend the
applicant was conveyed to him in writing on 19 September 2016.
He was given seven days within which to submit written
representations to the Municipal Council as to why he should not be
suspended
pending the outcome of the investigation into the
allegations of misconduct against him.
[6]
On 20 September 2016 the applicant’s attorney wrote to the
Municipality seeking clarity into the alleged misconduct
referred to
in the letter. The Municipality replied on 21 September
2016 with further information. The applicant
then submitted his
written representations on 26 September 2016 as to why he should not
be suspended.
[7]
The applicant’s written representations were included in the
agenda for the Municipal Council meeting on 11 October 2016.
This meeting decided that the meeting should be postponed in order to
properly consider the issue of the applicant’s suspension
at a
special meeting to be convened within seven days.
[8]
A subsequent special meeting was then convened for 17 October 2016 to
consider the applicant’s representations.
At this meeting
the Municipal Council resolved to suspend the applicant. The
decision was recorded as follows:
“
1. Dat Mnr.
Hendrik Barnard met onmiddellike effek geskors word;
2. Dat die Munisipale
Bestuurder vandag nog die Raadbesluit aan Mnr. Barnard kommunikeer;
3. Dat die Uitvoerende
Burgemeester teenwoordig is wanneer die Waarnemende Munisipale
Bestuurder die besluit aan Mnr. Barnard kommunikeer.”
[9]
Following the decision of the Municipal Council, the applicant then
received a letter on 17 October 2016 informing him of the
decision to
suspend him.
The
basis of the applicant’s challenge
[10]
Mr Metembo, who appeared for the applicant, argued that the legal
basis for the challenge of the applicant’s suspension
was
twofold: first, the applicant challenges the legality of the
meeting that was convened on 17 October 2016 where the decision
to
suspend the applicant was taken, and second, that the suspension was
unlawful in that the Municipality did not comply with Regulations
5
and 6, which regulates the procedure to be followed for the
suspension of a senior manager.
[11]
The
applicant, however, does not challenge the legality of the meeting
convened on 17 October 2016 in his founding affidavit.
His case
is based on the non-compliance with Regulations 5 and 6 that relate
to the suspension of a senior manager. The challenge
to the
legality of the meeting and all decisions taken as a consequence of
this meeting appears for the first time in the replying
affidavit.
It is trite that an applicant’s case must be made out in the
founding papers.
[1]
There
would, needless to state, be prejudice to the Municipality if this
court were to deviate from this long established
legal principle.
I shall accordingly confine myself to the basis of the challenge as
contained in the founding papers as
it would be inappropriate for the
applicant to expand the basis for his challenge in reply or in legal
argument. Counsel for the
applicant in any event abandoned his
reliance on this ground in the course of his argument.
The
legal framework: the Regulations
[12]
The applicant contends that his suspension is unlawful for
non-compliance with the Regulations 5 and 6.
[13]
The procedure for a precautionary suspension is dealt with in
Regulation 6, which reads as follows:
“
6.
Precautionary suspension –
(1)
The
municipal council may suspend a senior manager on full pay if it is
alleged that the senior manager has committed an act of
misconduct,
where the municipal council has reason to believe that –
(a)
the
presence of the senior manager at the work place may –
(i)
jeopardise
any investigation into the alleged misconduct;
(ii)
endanger
the wellbeing or safety of any person or municipal property; or
(iii)
be
detrimental to stability in the Municipality; or
(b)
the
senior manager may –
(i)
interfere
with potential witnesses; or
(ii)
commit
further acts of misconduct.
(2)
Before a senior manager may be suspended, he or she must be
given an opportunity to make a written representation to the
municipality
council why he or she should not be suspended, within
seven (7) days of being notified of the council’s decision to
suspend
him or her.
(3)
The
municipal council must consider any representation submitted to it by
the senior manager within seven days.
(4)
After
having considered the matters set out in sub-regulation (1), as well
as the senior manager’s representations contemplated
in
sub-regulation (2), the municipal council may suspend the senior
manager concerned.
(5)
The
municipal council must inform –
(a)
the
senior manager in writing of the reasons for his or her suspension on
or before the date on which the senior manager is suspended;
and
(b)
the
Minister and the MEC responsible for local government in the province
where such suspension has taken place, must be notified
in writing of
such suspension and the reasons for such within a period of seven (7)
after such suspension.
(6)
(a)
If the 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
council.”
Analysis
[14]
Section 186(2)(b) of the Labour Relations Act 66 of 1995 (“LRA”)
contemplates both a precautionary and punitive
suspension. The
applicant’s suspension was clearly a precautionary suspension
contemplated in Regulation 6.
[15]
It is trite
that a lawful suspension must be substantively and procedurally
fair.
[2]
[16]
In
Mogothle
v Premier of the North West Province & another
[3]
the Labour Court identified three criteria for a valid suspension:
(a) The employer
must have a justifiable reason to believe, prima facie at least, that
the employee has engaged in serious
misconduct;
(b) There is some
objectively justifiable reason to deny the employee access to the
workplace;
(c)
The
employee must be heard before a decision to suspend him/her is
taken.
[4]
[17]
The first two criteria involve an enquiry into the substantive
fairness of the suspension, and the third, involves procedural
fairness.
[18]
Because the applicant is challenging the lawfulness of his suspension
in terms of Regulation 6, it follows that non-compliance
with this
Regulation in effecting the suspension of the applicant would result
in the applicant’s suspension being unlawful.
A
demonstration of this unlawfulness would be the basis of the
applicant’s right to the relief he seeks.
[19]
This Court has pronounced on the interpretation and application of
Regulation 6 in recent judgments.
[20]
In
Lebu
v Maquassi Hills Local Municipality & others
(2)
[5]
, van Niekerk J stated the
following:
“
The procedure
relevant to the suspension of a senior manager in terms of regulation
6 can be summarised as follows:
(a)
A
municipality is entitled to suspend a senior manager on full pay, if
it reasonably believes that a senior manager has committed
an act of
serious misconduct.
(b)
The
municipality must have reason to believe that the continued presence
of the senior manager at the workplace will either jeopardize
any
investigation into the alleged misconduct, or endanger the well being
or safety of any person or municipal property. It will
also be
sufficient that the municipality believes that the manager’s
continued presence in the workplace will be detrimental
to stability
in the municipality, or that the manager may interfere with potential
witnesses, or commit further acts of misconduct.
The purpose of any
suspension must be rational, and a municipality must be in a position
to establish the reasonableness of its
belief.
(c)
A
municipality may do no more than take a decision in principle, before
affording the affected senior manager at least seven days’
notice of its intention to suspend him or her. The notice must
contain at least a description of the misconduct that
the
manager is alleged to have committed, and the Council’s
justification for its in-principle decision, and invite
representations
in relation to both. Both the nature of the
misconduct alleged and the purpose of the proposed suspension must be
set out in terms
that are sufficiently particular so as to enable the
senior manager to make meaningful representations in response to the
proposed
suspension
.
[6]
[21]
In
Mere
v Tswaing Local Municipality & Another,
[7]
referring to
Mojaki
v Ngaka Modira Molema District Municipality & Others
,
[8]
the court confirmed that:
“
The
object of regulation 6 of the regulations is to afford an employee a
hearing before the decision to suspend him or her is taken.
That object is achieved by calling on the employee to show cause why
he or she should not be suspended pending an investigation
or
disciplinary hearing.”
[9]
[22]
The Court
in
Mere
went on to state that Regulation 6 contemplates the opportunity to
make representations before the final decision is taken to suspend
a
senior manager and that the manager must at least be placed in a
position where he or she is able to make such representations.
[10]
[23]
In
Tsietsi
v City of Matlosana Local Municipality & Another
[11]
the Labour Court held the following in relation to Regulation 6:
“
In my judgment,
the above authorities on which the applicant relies, should not be
understood to amount to the following two propositions:
12.1 that the
particularity of the allegations of misconduct must be of such detail
as to allow for the setting out of the defence
in response thereto in
the applicable representations in terms of regulation 6. Or as
applicant averred to: ‘show that
the allegations have no
prospects’. This is because the suspension in terms of
the regulation is precautionary, and
resorted to in order for an
investigation to take place as to whether charges should follow, and
not a disciplinary sanction in
its own terms;
12.2 that the
municipality must set forth evidence to show that the person involved
may interfere in the conduct of the investigation
against him –
or herself. Reference to the position of the senior official
and the attendant powers and responsibilities
that he or she has,
read with the allegations of misconduct as set out in the
pre-suspension letter, should suffice.”
[12]
[24]
The Municipality must accordingly have complied with Regulation 6,
and the criteria identified in
Mogothle
when it decided
ultimately to suspend the applicant.
[25]
The Municipality must have notified the applicant of its intention to
suspend him and must have provided basic particulars
as to what
motivated the Municipality’s intention to suspend him in order
to provide him with an opportunity to submit representations
why he
should not to be suspended. The opportunity to submit
representations must have been conveyed to the applicant within
seven
days of being notified of the Municipal Council’s decision to
suspend him. The Municipal Council must then consider
any
representations submitted by the applicant within seven days.
In terms of Regulation 6(4), and after having considered
the factors
in Regulation 6(1)(a) and (b), together with the applicant’s
representations, it may then suspend the applicant.
[26]
The Municipality resolved that:
(a) the matter was highly
sensitive;
(b) there was a real fear
that because of his seniority, the applicant might victimise his
subordinates;
(c) He had already
disclosed confidential information to third parties without the
consent of and to the detriment of the Municipality
and he may do so
again;
(d) There was a need to
protect potential witnesses against any undue influence by the
applicant.
[27]
It is not in dispute that the applicant was afforded a hearing within
the required time period stipulated in the Regulations
and that he
was afforded an opportunity to submit representations why he should
not be suspended.
[28]
Having regard to the aforementioned factors and the applicant’s
representations, the Municipality then suspended the
applicant.
[29]
The applicant alleges that the Municipality considered his
representations on 11 October 2016, fifteen calendar days after
he
first submitted his representations on 26 September 2016.
[30]
He alleges, in the alternative, that his representations were not
considered by the Municipal Council at all, and that only
a vote took
place on 17 October 2016. He relies on a voice recording of the
Municipal Council meeting of 17 October 2016,
wherein the decision to
suspend him was taken. Neither of the parties placed a copy of
the transcript of this meeting before
the Court. It is however not in
dispute that the Council voted on the decision whether to suspend the
applicant.
[31]
The applicant admitted in his representations that he had
disseminated the report in question to his colleagues but that he
had
not known that the report was confidential. This, the
Municipality contends, together with its reasons why the applicant
should not be granted to the workplace, was the basis for his
suspension.
[32]
The applicant knew why the Municipality intended to suspend him.
The reasons for the suspension were contained in the
notice given to
him. He was afforded an opportunity in terms of the Regulations to
submit representations why he should not be
suspended.
[33]
The Municipality considered his representations on 11 October 2016
when they first met as a Council. The meeting was
then
postponed to 17 October 2016 for further consideration, and for a
decision. There is no basis for the applicant’s
contention that the Municipal Council did not consider his
representations before a decision was taken to suspend him. On the
contrary, the meeting of 11 October 2016 was postponed to 17 October
2016 to afford members of the Council a further opportunity
to
consider his representations, given the seriousness of the matter.
[34]
Regulation 6(3) stipulates that the Municipal Council must
consider
any representations submitted to it by the senior manager within
seven days. The regulations however do not state that the
decision
to suspend must be made within seven days. It
may be that the sub-regulation contemplated that a decision was to be
made within
seven days. I am however not prepared to adopt this
interpretation or to infer what this sub-regulation intended given
the
nature of the challenge. There is also nothing in the Regulations
which prohibits a further consideration of the representations.
[35]
The applicant also challenges the legality of his suspension on the
ground that the Municipality did not institute an investigation
as
contemplated in the regulations. The Municipality’s obligations
in respect of an investigation are regulated in somewhat
contradictory terms.
[36]
Regulation 5(3) stipulates that if a Municipal Council is satisfied
that there is reasonable cause to believe that an act of
misconduct
has been committed by the senior manager, the Municipal Council must
within seven days appoint an independent investigator
to investigate
the allegations of misconduct. Regulation 6(1) stipulates that
a senior manager may be suspended where
inter alia
the
presence of the senior manager at the workplace may jeopardise any
investigation into the alleged misconduct. The logical
interpretation is that Regulation 6(1), which deals with the process
of suspension, is intended to be a separate process than the
one
contemplated in Regulation 5. There is accordingly no merit in
the challenge that the applicant’s suspension was
unlawful
because of the Municipality’s failure to institute an
investigation in accordance with Regulation 5.
[37]
The final aspect of the application relates to the involvement of the
Mayor and Speaker of the Municipal Council, the second
and fourth
respondents respectively. The applicant alleges that they
should not have considered his representations in that
he had filed
grievances against them. The timing of the grievances requires
further scrutiny. The subject of his grievances
in respect of the
Mayor and the Speaker appeared in the media on 7 September 2016.
The grievances were filed on 21 September
2016, two days
after
the
applicant received a notice informing him of the Municipality’s
intention to suspend him. Why the applicant waited
until 21
September 2016, two weeks after it first appeared in the media, is
not explained. It seems to me that there is at least
the likelihood
that the applicant had filed the grievances in retaliation to his
suspension. In my view the grievances did
not automatically
disqualify the Speaker and Mayor from considering the applicant’s
representations and from participating
in a meeting where a decision
was made to suspend him. There are also no facts before me to suggest
that the remaining Council
members who considered the applicant’s
representations, and who voted in favour of his suspension, did not
do so objectively
and impartially. I remain mindful that the
applicant does not challenge the legality of the Municipal Council
meeting of
17 October 2016 in my determination of this issue.
[38]
The applicant also contends that no reasons for his suspension were
given, which makes his suspension unlawful. It is
common cause
that the applicant was given reasons for his suspension, albeit that
it was not in the letter dated 17 October 2016
wherein he was
informed of his suspension. Counsel for both parties confirmed
that the applicant was provided with the recording
of the meeting of
17 October 2016 which contained the reasons for his suspension.
However, the applicant was fully notified
of the reasons for his
suspension when he was first notified of the Municipality’s
intention to suspend him.
[39]
The applicant also challenges the fairness of his suspension,
although Mr Metembo was reluctant to admit this in legal argument.
A challenge as to the fairness of the applicant’s suspension is
readily apparent from the founding affidavit where he directly
alleges that the Municipality has not established a factual basis for
the reasons to suspend him. Mr Metembo also argued
that he was
not treated fairly when the decision to suspend him was taken. The
applicant submits that, for this reason, his suspension
too was
unlawful.
[40]
The
fairness of the applicant’s suspension is not a matter for this
Court to decide. In
Member
of the Executive Council for Education North-West Provincial
Government v Gradwell
,
[13]
the Labour Appeal Court reminds us that disputes about unfair labour
practices must be referred to the CCMA or Bargaining Council.
The LAC also held that the declaratory order that a suspension is
unfair will normally be regarded as inappropriate where the applicant
has access to alternative remedies, such as those available under the
unfair labour practice jurisdiction,
[14]
and that a final declaration of unlawfulness on the grounds of
unfairness will rarely be easy or prudent in motion proceedings.
The determination of the unfairness of a suspension will usually
better be accomplished in arbitration proceedings, except perhaps
in
extraordinary or compelling urgent circumstances.
[41]
The LAC further held that where the suspension carries with it a
reasonable apprehension of irreparable harm, then more often
than
not, the appropriate remedy for an applicant will be to seek an order
granting urgent interim relief pending the outcome of
the unfair
labour practice proceedings. In the instant case, the applicant
does not seek such an interim order. Based
on the authority in
Gradwell
which I am obliged to follow, this Court does not
have the legal competence to determine the fairness of the
applicant’s
suspension.
[42]
Notwithstanding that Regulation 6 was not strictly followed,
substantial compliance, in my view, suffices to demonstrate
compliance.
Notably, there was compliance with the
audi alterem
partem
rule where the applicant was afforded an opportunity to be
heard and where his representations were considered before the
Municipal
Council resolved to suspend him.
[43]
The LAC in
Gradwell
held that 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 of procedural fairness.
[15]
[44]
Having considered all the relevant factors and the legal principles,
I am of the view that there was substantial compliance
with
Regulation 6 and that, for this reason, the applicant’s
suspension was lawful.
Conclusion
[45]
The applicant has failed to demonstrate that he was unlawfully
suspended, and has failed to demonstrate exceptional circumstances
to
justify intervention in his suspension by this Court.
[46]
His suspension is of a limited duration, and the Municipality is
obliged in terms of Regulation 6(a) to commence the disciplinary
hearing against the applicant within three months, failing which the
suspension will automatically lapse.
Order
[47]
I accordingly make the following order.
(1)
The
application is dismissed.
(2)
There
is no order as to costs.
________________
GOLDEN, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
Applicant’s
attorneys:
Duvenhage Keyser & Jonck Inc
First Respondent’s
attorneys: Blyth & Coetsee
Attorneys
[1]
Tittys Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd &
Others
1974 (4) SA 362
(T) at 369A-B
[2]
HOSPERSA & Another v MEC for Health, Gauteng Provincial
Government
[2008] ZALC 45
;
[2008] 9 BLLR 861
(LC); SAPO Ltd v Jansen van Vuuren N.O.
& Others [2008] 8 BLLR 798 (LC)
[3]
[2009]
4 BLLR 331 (LC)
[4]
At para [39]
[5]
(2012) 33 ILJ 653 (LC)
[6]
At para 16
[7]
[2015] 36 ILJ 3094 (LC)
[8]
[2015]
56 ILJ 1331 (LC) at para [29]
[9]
At para [36]
[10]
Mere
ibid
at
paragraph [37]
[11]
[2015]
36 ILJ 2158 (LC)
[12]
Ibid para [12]
[13]
[
2012]
33 ILJ 2033 (LAC)
[14]
See also Mantzanis v University of Durban Westville & Others
(2000) 212 ILJ 1818 (LC).
[15]
Gradwell
ibid
at
para [44] page 2052.