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[2017] ZALCJHB 27
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Member of the Executive Council: Police, Roads & Transport (Free State Government) v General Public Service Sectoral Bargaining Council and Others (JR809/14) [2017] ZALCJHB 27 (30 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No: JR809/14
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL:
POLICE,
ROADS & TRANSPORT
(FREE
STATE
GOVERNMENT) Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First
Respondent
VM
MOROBANE
N.O
Second
Respondent
MONNAPULE
HENRY
NTAMO Third
Respondent
Heard:
19 November 2015
Delivered:
30 January 2017
JUDGMENT
BALOYI,
AJ
Introduction
[1]
This is an
application in terms of section 145 of the Labour Relations Act
[1]
for the review and setting aside of an arbitration award issued under
the auspices of the first respondent dated 11 March 2013
under case
number GPBC228/2013. The application is opposed by the third
respondent, Monnapule Henry Ntamo (Ntamo).
[2]
Ntamo was employed by the Department of Police Roads and Transport,
Free State until his dismissal following a disciplinary
hearing.
Following his dismissal, Ntamo referred a dispute to the first
respondent in which he contended that his dismissal was
substantively
and procedurally unfair. The second respondent is the commissioner
appointed by the first respondent to arbitrate
the dispute after
conciliation failed. In his arbitration award, the commissioner found
that the dismissal was substantively unfair
and ordered
reinstatement.
Summary
of relevant facts
[3]
Ntamo was employed as Director: Organisational and Human Resources
Development (OHRD) until his dismissal on 7 December 2012
on the
following charges of misconduct –
“
Charge One
Gross Misconduct:
Breach or contravention of the department’s supply chain
management policy and/or treasury regulations and/or
supply chain
management practice notes and/or public finance management Act 1 of
1999
1.1 You are charged
with gross misconduct, to wit, breach or contravention of the
department’s Supply Chain Management Policy
and/or treasury
regulations and/or supply chain management practice notes and/or
public finance management Act 1 of 1999 in one
or more or all of the
following counts or instances:
1.1.1
On
or about 28 November 2011 you did, whilst occupying the position of a
Director:OHRD in the department, wilfully or negligently
appoint or
cause to be appointed an entity called Ntsu Trading 628 to provide
catering for breakfast and decorations to the department
for an
amount of R39 710.00 without complying with and/or ensuring that the
department’s normal procurement procedures and
policies had
been complied with prior to the appointment of the aforesaid service
provider; and/or
1.1.2 On or
about 28 November 2011 or prior to this date you did wilfully or
negligently fail to ensure or satisfy yourself
that the department’s
accounting officer had approved the deviation from the department’s
normal procurement procedures
prior to the appointment of Ntsu
Trading 628 to provide catering for breakfast and decorations to the
department. Consequently,
on 31 January 2012 you prepared a
submission wherein you sought or requested the accounting officer’s
approval of deviation
ex post facto when you well knew or ought
reasonably to have known that the accounting officer’s approval
of deviation ought
to have been sought and obtained prior to the
appointment of the service provider.
1.2 As the
result of your aforementioned conduct or omission, the department
suffered prejudice in that the amountt paid by
the department to Ntsu
Trading 628 constitutes an irregular expenditure which occurred in
circumstances whereby a reasonable official
occupying the position of
a Director:OHRD in the public service and therefore part of the
department’s senior management
would, by exercise of reasonable
care, due diligence and acting in the best interest of the
department, have avoided and/or prevented
the irregular expenditure.
1.3 Your
aforementioned conduct or omission is prejudicial to the
administration, discipline and efficiency of the department and
constitutes an act of financial misconduct as provided in section 81
read with section 45 of the PFMA.
Charge Two
Gross Misconduct:
Gross neglect or dereliction of duties, functions and
responsibilities
2.1 You are charged
with gross misconduct, to wit, gross neglect or dereliction of your
duties, functions and responsibilities in
that as a Director:HRM of
the department, you wilfully or negligently failed to ensure that the
applications for the 52 (fifty
two) provincial inspector positions
were porperly and fairly short-listed in terms of the minimum
requirements as advertised for
the position, that the interview
panels only consisted of persons duly appointed, substituted or
replaced by the Head of Department
and that each of the appointed
members of the interview panels properly evaluated the candidates and
awarded them points in terms
of their performance in the interviews.
2.2 As the result of
your aforementioned willful (sic) or negligent failure to discharge
your duties, functions and responsibilities
as aforesaid, some of the
candidates were interviewed by interview panels that had not been
duly appointed by the head of department,
some of the candidates were
not properly evaluated and awarded points for their performance in
the interviews by all panel members
and some of the candidates were
shortlisted, interviewed and recommended for appointments and
eventually appointed even though
they did not meet some of the
important minimum requirements as advertised for the position of
provincial inspector.
2.3 Your conduct or
omission as set out in paragraphs 1.1 and 1.2 above took place in
circumstances whereby a reasonable Director:OHRD
and Acting
Director:HRM of the department in your position and therefore a
senior manager in the public service would, by exercise
of reasonable
care, due diligence and actingin the best interest of the department
as his employer, have taken appropriate and
necessary steps to avoid
or prevent prejudice or potential prejudice to the department.
2.4 Furthermore, your
conduct or omission as set out under this Charge is in breach of
items 6 and 14 of Annexure “A”
to Chapter 7 of the Senior
Management Service Handbook which provide that an employee will be
guilty of misconduct if he/she prejudices
the administration,
discipline and efficiency of a department, office or institution of
the State and if he/she performs poorly
or inadequately for reasosn
other than incapacity. Your conduct or omission as set out under this
Charge is also in breach of Clauses
C3.6 and C4.4 of the Code of
Conduct in the Public Service which provide inter alia that an
employee must deal fairly, professionally
and equitably with other
employees and that an employees (sic) must execute his/her duties in
a professional and competent manner”.
For
convenience, I refer to charge 1 as breach of SCM procedures and to
charge 2 as dereliction of duties.
[4]
The commissioner found on both charges that Ntamo is not guilty for
the misconduct charged. He accordingly, concluded that the
dismissal
is substantively unfair and ordered – reinstatement on same or
similar terms and conditions as existed before dismissal;
payment of
16 months’ salary from 10 10 December 2012 to March 2014; that
Ntamo report for duty on 1 April 2014. I
note that the award is
curiously silent on why the applicant is required to pay a salary for
March 2014 when the award is dated
14 February 2014 and the employee
is required to report for duty only on 1 April 2014.
Is
the award liable to be set aside
?
[5]
The applicant relies on the follows grounds for the review and
setting aside of the award – (i) gross irregularity; (ii)
misconduct; (iii) bias; (iv) gross unreasonableness; and/or (v) lack
of rationality in the following respects –
5.1. by finding that the
deviation from SCM Policy complied with clause 14.1.4 and 14.2 of the
department’s SCM Policy when
the evidence and documents before
him showed that there was no compliance with the policy and there was
no prior approval of the
deviation. The commissioner misconstrued the
evidence and showed bias in the consideration and evaluation of the
evidence.
5.2. He misconstrued the
evidence about the extension of the scope of Ntsu in that he found
that Ms Modiselle extended the scope
whereas the submission of Ntamo
for
ex post facto
authorisation of deviation states that he
(Ntamo) extended the scope of Ntsu. The commissioner misconstrued the
evidence in order
to exculpate Ntamo.
5.3. By finding that the
SCM Policy does not indicate that deviation be approved before
procurement of services or goods, the commissioner
failed to apply
his mind to all the facts and evidence and/or misconstrued the
evidence.
5.4. By finding that
Ntamo was not guilty of a breach of the SCM policy in the light of
the evidence, the commissioner failed to
properly apply his mind to
all the facts and evidence in an unbiased and fair manner.
5.5. By finding that the
department has applied the SCM policy inconsistently and discipline
selectively, without providing any
reason for the conclusion, the
commissioner failed to determine the dispute in a fair and unbiased
manner.
5.6. The commissioner
misconstrued the evidence of witnesses Messrs Selai and Mogaecho as
hearsay evidence when the witnesses testified
to what they allegedly
saw notwithstanding that Mr Selai testified that according to records
he saw at the department, Ntamo was
responsible to oversee the
process even though he was only formally appointed Acting Director:
HRM in January 2012.
5.7. By finding that Ms
Macala was evasive in her testimony, without identifying the evidence
in respect of which he found that
she was evasive
5.8. The commissioner
failed to apply his mind to the evidence about Ntamo’s
involvement and role in the process that resulted
in the impugned
appointment of provincial inspectors and did not deal with the
evidence in a fair and unbiased manner.
5.9. The commissioner
misconstrued the evidence of Ms Macala that Ms Wolff prepared the
list of short-listed candidates and Ntamo
prepared the list of
candidates to be appointed.
[6]
With
respect to the test for review on the grounds of misconduct, gross
irregularity and/or excess of power, the court in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
[2]
said that the proper questions to ask in relation to the conduct of
arbitration proceedings or “process-related” issues,
are
the following:
6.1. In terms of his or
her duty to deal with the matter with the minimum of legal
formalities, did the process that the arbitrator
employed give the
parties a full opportunity to have their say in respect of the
dispute?
6.2. Did the arbitrator
identify the dispute he or she was required to arbitrate? (this may
in certain cases only become clear after
both parties have led their
evidence).
6.3. Did the arbitrator
understand the nature of the dispute he or she was required to
arbitrate?
6.4. Did he or she deal
with the substantial merits of the dispute?
6.5.
Is the
arbitrator’s decision one that another decision-maker could
reasonably have arrived at based on the evidence?
[3]
[7]
I accordingly take guidance from the above and proceed to consider
the award and the evidence that was before the commissioner.
Breach
of SCM Procedures
[8]
The relevant evidence that was before the commissioner is that -
8.1. Ntamo was part of a
co-ordinating team with Mr M Sebeela, SCM Practitioner and Ms M
Modiselle, Deputy Director:Social Crime
Prevention for the event
Symposium on Gender Based Violence for Law Enforcement to be held on
28 November 2011. Mr Sebeela and
Ms Modiselle were both subordinate
to Ntamo. On a date before 28 November 2011, the company Ntsu Trading
628 (Ntsu) was appointed
to supply lunch at the event.
8.2. On 28 November 2011,
Ntsu was given authority to also supply breakfast and decorations at
the same event for the amount of
R39 710.00 which it did (this
authorisation to Ntsu is referred to as “
extension of
scope
”). No quotations were obtained from other suppliers
for the service in the extension of scope and the accounting officer
did not authorise the extension of scope before the service was
procured from Ntsu. Neither did the accounting officer authorise
the
extension of scope without obtaining quotations from other suppliers.
According to Ntamo, Modiselle was the person that instructed
Ntsu to
provide breakfast and decorations and that he only sought
authorisation of payment with his submission of 31 January 2012.
8.3.
On 31
January 2012, Ntamo submitted a written request to the accounting
officer in which he sought “to obtain
ex
post
facto approval to pay …”. The submission is in the name
of Ntamo and signed by the Acting CFO, Ms A Botes, who indicates
that
she concurs and Modiselle, Deputy Director, Social Crime Prevention,
Mr F Maleba, Director SCM (both of whom do not indicate
whether or
not they recommend or concur in the submission. The submission is
also signed by the Head of Department who signed and
indicated “not
approved”. I refer only to the parts of the submission relevant
for present purposes. The heading of
the submission is “
Ex
Post Facto for approval to Ntsu Trading 628 from SCM
Procurement Processes in sourcing quotations above R30 000.00 for
catering and decorations for 500 people attending symposium on gender
based violence for law enforcement from 28 November 2011
for social
crime prevention …
”.
Under the heading “
Purpose
”,
the purpose of the submission is recorded as “
to
obtain ex post facto approval to pay Ntsu …
”.
Under the heading “
Motivation
”,
the following is stated - “
After
consultation with Mr Sebeela (SCM) who was on site at the time, and
failed attempt to reach the director SCM
a
request was made to the provider to extend his scope to the latter by
myself and Mr Sebeela
.
This matter was further communicated to the CFO and Chief Director
Crime Prevention
”
(my underlining)
[4]
. The
submission also explains that “
The
office of the Chief Director Crime Prevention was to provide funding
on behalf of the department omission was committed from
their site
(sic) with regard to the provision of the decoration and breakfast
respectively as they were responsible for preparing
a request to
SCM
”.
It is common cause that at the time that the submission was made,
Ntsu had already rendered the service in question.
8.4. Clause 3.3.3 of the
department’s Supply Chain Management prescribes that
procurement of goods and service above R10 000
but below R500 000
must be done by procuring at least 3 written quotations from
suppliers registered on the list of accredited
prospective suppliers
and clause 3.6.4 prescribes that if it is not possible to obtain 3
written quotations, the reason should
be recorded and approved by the
accounting officer or his delegate (this is referred to as a
deviation).
8.5. In addition to the
department’s SCM policy, Treasury Regulations and Practice
Notes clauses 3.3.1 and 3.3.3 of the SCM
Practice Note No.8 of
2007/2008 require that procurement up to the value of R500 000 is
done by obtaining written quotations from
as many suppliers as
possible that are registered on the list of prospective suppliers and
that if it is not possible to obtain
3 written quotations, the
reasons should be recorded and approved by the accounting
officer/authority or his/her delegate; the
department’s SCM
Policy and the National Treasury SCM Practice Note are based on
Treasury Regulation 16A.6.4 which prescribes
that
“
16A.6.4 If in a
specific case it is impractical to invite competitive bids, the
accounting officer or accounting authority may procure
the required
goods or services by other means, provided that the reasons for
deviating from inviting competitive bids must be recorded
and
approved by the accounting officer.
”
8.6. Clause 14.1. and
14.2 of the SCM Policy read
“
14.1 The
accounting Officer may dispense with the official procurement process
established by the policy to procure any required
goods or services
through any convenient process, which may include direct
negotiations, but only
4.1.1
In
an emergency;
4.1.2 In any other
exceptional case where it is impractical to follow the official
procurement process
”.
“
14.2 Such
reasons must be recorded and approved by the Accounting Officer or
his/her delegate
”.
8.7. The procurement
policy and procedures does not provide for authorisation of deviation
after a supplier is appointed –
Ntamo conceded this much in
evidence but contended that the practice in the department allows
ex
post facto
authorisation. He also testified that he extended
Ntsu’s scope without first seeking 3 quotations because the
matter had
become urgent and did not afford the opportunity to seek
quotations.
[9]
The commissioner found, at paragraph 5.7 of the award, that “
in
the light of all the evidence and documents provided, I find that
there was deviation from the normal process of procurement.
The
extension of scope of work was made by the leader of the team/project
manager Ms Modiselle in consultation with Mr Ntamo and
Sebeela. Such
a deviation falls within the ambit of the SCM Policy Items 14.1.4 and
14.2
” and at paragraph 5.11 concluded that “
the
applicant is not guilty of the alleged breach of the SCM policy
especially where similar deviation requests were made and granted.
The department’s inconsistent application of its SCM policy and
the selective disciplinary action against applicant is unfair
”.
[10]
Clause 14.1.2 and 14.2 referred to by the commissioner read
“
14.1 The
accounting Officer may dispense with the official procurement process
established by the policy to procure any required
goods or services
through any convenient process, which may include direct
negotiations, but only
4.1.2
In
an emergency;
4.1.2 In any other
exceptional case where it is impractical to follow the official
procurement process
”.
“
14.2 Such
reasons must be recorded and approved by the Accounting Officer or
his/her delegate
”.
[11]
There is no
evidence that the accounting officer acted in terms of clause 4.1 or
indeed 14.2 and Ntamo did not contend so in his
evidence. If such was
Ntamo’s contention, his written submission of 31 January 2012
would otherwise not have been necessary
or make any sense. Ntamo’s
own oral evidence is that Ntsu’s scope was extended without
first obtaining the approval
of the Head of Department. Indeed, Ntamo
seeks
ex
post facto
approval of the extension of scope for precisely that reason. The
commissioner clearly understood that the accounting officer did
not
take any action as contemplated in clause 4.1, hence he states in the
award that there is no reason that the accounting officer
did not
approve the deviation
[5]
.
[12]
Ntamo’s evidence that he only sought approval of payment after
he found that the service had already been rendered on
Modiselle’s
instruction is not supported by or consistent with his written
submission which records that he, Ntamo, after
discussion with
Sebeela, extended the scope of Ntsu. The evidence of Ntamo which
seeks to implicate Modiselle as the person that
extended the scope of
Ntsu is nonsensical in the face of his written submission and
obviously an outright lie.
[13]
The commissioner’s conclusion that the deviation complied with
clauses 14.1 and 14.2 is not supported by the evidence
that was
before him and is in fact contradictory. It is frankly
incomprehensible how and on what basis the commissioner could
reasonably have arrived at his finding and conclusion in the light of
the evidence. In particular: (i) the common cause evidence
that the
accounting officer was not requested and did not approve the
extension of scope before the service was rendered by Ntsu;
(ii) in
the submission of 31 January 2013, Ntamo records that he and Sebeela
authorised the extension of scope; (iii) the accounting
officer did
not approve the extension of scope when requested to do so after the
event; (iv) on its terms, the SCM policy and procedures
gives the
accounting officer the discretion whether or not to approve a
deviation in the specifically circumscribed circumstances.
The
commissioner’s reliance on – Ntamo’s testimony that
“they acted as a team and only prepared the submission
afterwards, when the service provider was not paid”; a letter
from Mr MM Sebeela, an SCM Practitioner who confirms that the
scope
of Ntsu Trading was extended to provide breakfast and decorations,
which extension was done after consultation with Ms Modiselle,
the
project manager; the affidavit of Merriam Hlangu of Ntsu Trading 628
(in) which she confirms that Ms Modiselle requested her
to add
breakfast and decorations since the Honourable MEC Mr B Kompela
confirmed his attendance”; that Ms A Botes, concurred
with the
submission of 31 January 2012 for
ex post facto
approval and
had previously approved a request from Sebeela to deviate from SCM
process; (iii)
that Ms Botes, as the CFO is specifically delegated
in terms of Supply Chain Management Delegation Powers to approve
certain procurements
or delegations
”; that he saw no reason
why the accounting officer did not ratify this deviation,
alternatively why all employees involved
in the service provider’s
extension of scope of work were not simultaneously charges; and that
the SCM policy does not indicate
whether the request for deviation
should be ratified before or after the provision of services
,
to
arrive at the conclusion that Ntamo is not guilty of the misconduct
charged is a forced misdirection which and has no basis whatsoever
on
the evidence that was before him
.
It follows that the
conclusion of the commissioner that the deviation complied with
clauses 14.1.2 and 14.2 is unreasonable on the
facts that were before
him and cannot stand.
[14]
The
commissioner also found that there was no reason that the accounting
officer did not ratify the deviation
ex
post facto
.
It is not apparent from the award why the commissioner came to this
conclusion or indeed why he deemed it appropriate to make
this a
factor in the light of the charge
[6]
.
Whilst it should suffice to state that it was not in the province of
the commissioner to prescribe how the accounting officer
should have
dealt with Ntamo’s request for
ex
post facto
approval or ratification of the deviation, and that therefore the
commissioner misdirected himself as to the nature of the inquiry,
it
is appropriate to point out that this is obviously a matter which, by
prescript of policy, falls entirely within the discretion
of the
accounting officer, who is also the sole person accountable for the
exercise of that discretion and who must make the determination
whether the breach is minor and of a “
purely
technical nature
”.
There is no evidence that the accounting officer had such duty as the
commissioner appears to impose upon him.
[15]
In the event, the decision of the commissioner that Ntamo is not
guilty of the charge of breach of SCM Procedures stands to
be set
aside.
Dereliction
of duties
[16]
The relevant evidence that was before the commissioner may be
summarised as follows -
16.1.
Ntamo was
formally appointed Acting Director: HRM on 2 February 2012. Prior to
his appointment, he became responsible for co-ordinating
and
overseeing the process of selecting and appointing 52 (fifty two)
provincial inspectors
[7]
. There
is disagreement between Ntamo and the department whether before his
appointment on 2 February 2013, Ntamo was Director,
HRM, which Ntamo
denies. I do not consider that much of significance turns on this
because Ntamo accepts that as co-ordinator and
overseerer of the
selection process, he supervised the work of Ms MA Wolff and Ms MA
Macala
[8]
, both human resource
practitioners subordinate to him and who were responsible for the
administration aspect of the selection process.
According to Macala,
she and Wolff were responsible to take minutes, to compile
advertisement, to prepare long-list and short list
and submit to the
short-listing and interviewing panel for approval, to arrange for
short-listed candidates to attend interviews,
to prepare the
submission, recommending candidate to be appointed and presenting for
signature.
16.2.
For his
part, Ntamo oversaw the shortlisting and interviewing process but did
not shortlist or interview candidates but attended,
at least some, of
the interviews as an observer.
[9]
.
16.3. In a written
submission bearing the name of Ms MA Wolff with the heading
“
SHORTLISTING REPORT: ADVERTISED POSTS OF (52) X PROVINCIAL
INSPECTOR: TRAFFIC MANAGEMENT
”, dated 14 November 2011,
approval of the shortlist of candidates to be interviewed is sought
as follows “
upon the approval of the approved shortlist,
it is envisaged that the interviews will be held within two weeks by
the committee
approved as follow
…
”(my
underlining). It is common cause that the request for approval of the
shortlist was made by Wolff.
16.4.
The
selection process resulted in the appointment of 55 candidates,
instead of the advertised 52, two of whom did not meet the advertised
minimum requirements for appointment. With respect to the
shortlisting of candidates who did not meet the advertised minimum
requirements
for appointment, Macala testified that sometimes the
department does shortlist candidates who do not meet the minimum
advertised
requirements if there are not enough candidates that meet
the advertised requirements
[10]
.
There is no evidence whether or not this was the case in the present
matter.
[17]
In a
submission dated 12 December 2011, bearing Ntamo’s name as the
person making the submission in the capacity of Director:
Human
Resource Development, with the heading “
FILLING
OF THE VACANT POSTS OF PROVINCIAL INSPECTOR: TRAFFIC –
MANAGEMENT: DIRECTORATE”
,
approval was sought for the appointment of 55 candidates, including 2
who did not meet the requirements for appointment. Ntamo
did not deny
that the submission was his. According to Macala, the submission to
appoint was made after letters of appointment
were issued to the
candidates
[11]
.
[18]
Ntamo
testified that Wolff and Macala were responsible for the selection
process and that the submission of Wolff of 14 November
2014 was the
cause of the appointment of the 55 provincial inspectors. Macala, on
the other hand testified that Ntamo was responsible
to make sure that
the submission requesting appointment of the recommended candidates
contained 52 and not 55 candidates
[12]
and that the candidates recommended for approval met the requirements
for appointment. She also testified that Ntamo’s role
was to
oversee that everything was done in accordance with policy, that the
interview panel asked candidates the same questions
and to sit in the
interviews
[13]
. She also
testified that Ntamo was involved with the shortlisting of
candidates
[14]
.
[19]
The commissioner concluded that Ntamo was not responsible for the
appointment process and was thus not guilty of the charge.
The
commissioner arrived at this conclusion on the basis that the
submission of Wolff of 14 November 2011 sought that the candidates
listed in the report be appointed and was the cause of the error in
the appointment of the 55 candidates.
[20]
The conclusion of the commissioner is not supported by the evidence
and at best, he misunderstood the evidence regarding the
submission
of Wolff and its consequence. The submission, on its terms, did no
more than seek approval of the list of candidates
to be interviewed.
This is apparent where it records that “
upon the approval of
the approved shortlist, it is envisaged that the interviews will be
held within two weeks by the committee
approved as follow …
”.
This leaves no doubt about the purpose of the report and specifically
what it sought to be approved, viz. the shortlist
of candidates
recommended to be interviewed. There is therefore no reasonable basis
on which the commissioner could have concluded
that the submission of
Wolff was the cause of the appointment of the 55 candidates. This
alone renders the decision of the commissioner
to be set aside.
[21]
In addition, the commissioner disregarded the following evidence
about the role of Ntamo in the selection process – (i)
he
oversaw the selection process; the work of Macala and Wolff; and the
work of the shortlisting and interviewing panels; (ii)
he was aware
that the advertisement required the filling of 52 positions with
candidates who met the advertised minimum requirements;
(iii) the
submission of Wolff of 14 November 2011 sought approval of the list
of candidates shortlisted to be interviewed; (iv)
the submission of
Wolff predates the interviews and selection of candidates recommended
for appointment; (v) the submission to
the MEC to approve the
appointment of the 55 candidates recommended for appointment bore the
name and signature of Ntamo where
indicated for the name of the
person making the submission. It is common cause that Ntamo made this
submission and recommended,
(at paragraph 7.1), “
That
approval be granted for the appropriate filling of the vacant posts …
.
” and that the recommendation was approved by,
inter
alia
, the Head of Department and the applicant. This submission
does not bear the name of Wolff. It follows that the conclusion of
the
commissioner that Wolff and not Ntamo was the cause of the
appointment is not reasonable and his decision that Ntamo is not
guilty
on this erroneous basis cannot stand.
[22]
In the light of the conclusion to which I have arrived, I do not
consider it necessary to deal with the further grounds for
review
relied upon by the applicant.
[23]
The commissioner also found that the employer applied selective
discipline in that it did not subject all the employees involved
with
the impugned conduct to disciplinary processes. It is my view that
with this finding, the commissioner lost sight of the nature
of the
charge against Ntamo – (i) that he authorised procurement
without following prescribed procedure; and (ii) he failed
to ensure
that the submission to the MEC and therefore the appointment of
provincial inspectors complied with the requirements
of the
advertisement. Both the submission for
ex post facto
approval
of the deviation and the submission to appoint provincial inspectors
were made by Ntamo, with him stating in the former
that he authorised
the deviation without approval of the Head of Department and in the
latter, recommending the appointment of
the 55 candidates. In any
event, that others may well have contributed to the impugned conduct
does not insulate Ntamo from disciplinary
action for his own conduct
which is distinct from that of the other persons he seeks to
implicate. For that reason, I find that
the issue of consistency in
disciplinary action does not arise in this matter and the
commissioner misdirected himself.
Remedy
[24]
The applicant seeks as primary relief that the Court substitute the
award of the commissioner, and in the alternative, remit
the matter
to the CCMA for a hearing afresh.
[25]
The record in this matter is quite extensive comprising at least 4
arch lever files. The parties have had a full and comprehensive
airing of the merits of the dispute before the commissioner and Ntamo
does not contend, in his answer to the applicant’s
prayer for
substitution of the commissioner’s decision, that there is a
need to hear further evidence. In the result, I am
satisfied that on
the record before me, I am placed in a position to determine the
merits of the dispute. A remittal of this aspect
in the circumstances
will only serve to unnecessarily prolong the finalisation of the
matter and would not be fair to the parties.
I accordingly intend to
deal with the merits.
[26]
I have already found that on the charge of breach of SCM Procedures -
(i) the accounting officer did not make a decision or
authorise the
extension of the scope of Ntsu to provide breakfast and decorations;
(ii) the accounting officer did not authorise
the extension of scope
without compliance with the requirement to obtain 3 quotations; (iii)
Ntamo extended the scope of Ntsu to
provide breakfast and decorations
and did so without the approval of the accounting officer; (iv) the
accounting officer did not
approve the deviation as requested by
Ntamo in his submission of 31 January 2012, which the accounting
officer could do if he/she
considered the breach minor and only of a
technical nature. It is irrelevant that the employee, or the Court
for that matter, may
consider the breach minor and only of a
technical nature. The determination is purely of the accounting
officer and in this case,
the accounting officer exercised his/her
discretion against approval; (v) the request for approval was made by
Ntamo after Ntsu
had been appointed and rendered the service in
issue.
[27]
Whilst it was put to Mr Lehasa Mazibuko, a witness for the applicant,
that Ntamo found that the services had already been rendered
and all
that he did was to seek authorisation for payment, this is not borne
out by his submission of 31 January 2012, which expressly
states that
Ntamo extended the scope of Ntsu. This evidence, without more,
renders Ntamo guilty of the charge of breach of SCM
procedures as
formulated in charge 1. It is approriate to point out that even if
the Accounting Officer had chosen to approve or
ratify the breach
ex
post facto
in accordance with the applicant’s submission,
it does not follow that Ntamo would have avoided any censure for his
failure
to comply with prescribed procedures and policy. This is a
matter that was entirely within the discretion of his superiors to
decide,
which they did by instituting disciplinary proceedings.
[28]
I am satisfied that the applicant has shown that Ntamo is guilty of
the misconduct alleged in charge 1.
[29]
With respect to charge 2, I am satisfied that Ntamo, by making the
submission to the MEC to appoint 55 candidates, 2 of whom
lacked the
necessary qualification, contrary to the advertisement, was the
effective cause of the appointments and was grossly
derelict of his
duties. His failure to act diligently caused the department to incur
irregular expenditure in respect of the excess
candidates who were
appointed. It also caused the department to appoint candidates who
did not meet the requirements for appointment.
This is manifestly
unfair to other candidates who did not derive the same benefit as the
2 candidates who did not qualify.
[30]
On his own account, Ntamo oversaw and supervised the selection
process. I make nothing of whether or not he did so in an acting
capacity or not. The process that he oversaw resulted in him making a
written submission which recommended the appointment of 55
candidates, 2 of whom lacked the advertised minimum requirements,
when only 52 candidates who met the advertised requirements were
to
be appointed. As the person responsible for the act that resulted in
the MEC making the impugned appointments, Ntamo must accept
responsibility for this serious failure by government to follow fair
process. Whilst it is evident from the evidence that other
role
players contributed to the error, Wolff, Macala and at least the
chairperson of the interviewing panel Mr Leeto, their work
was
subject to oversight by Ntamo who was the last and responsible person
to ensure compliance with process and the requirements.
This he
dismisally failed to do.
[31]
Whilst charge 2 includes failure to ensure that – (i)
candidates were asked the same questions; (ii) that they were
evaluated properly and awarded points in accordance with their
performance; and (iii) that the interview panels comprised persons
appointed by the Head of Department, no evidence was presented to
support this charge. Accordingly, the department did not show
that
Ntamo was guilty of these acts. Notwithstanding, I am satisfied that
Ntamo failed to ensure that the approved number of candidates,
who
met the prescribed minimum requirements were appointed – he
dismally failed to exercise reasonable care and due diligence
to
ensure that the correct appointments were made. It follows that I
find that Ntamo is guilty of the charge of dereliction of
duty in
that he caused that persons were appointed who should not have been
appointed. His failure prejudiced the administration,
discipline and
efficiency of the department.
[32]
Having found that Ntamo is guilty of charges 1 and 2, the question of
the appropriate sanction must be determined. This is
a matter that
the commissioner must consider and exercise his discretion as to the
appropriate sanction. I accept the applicant’s
contention that
matters of procurement by the state in a fair, transparent and
equitable manner are not trivial. The failure to
comply therewith is
a serious matter that must carry consequence. The circumstances that
resulted in his non-compliance with prescribed
procurement procedures
and policy may well mitigate Ntamo’s conduct in the
circumstances. The gravity of the misconduct,
including that relating
to the appointment of the 55 provincial inspectors are matters that
must be considered when determining
an appropriate sanction, and
taking into account any mitigating or aggravating factors.
[33]
In the light of the conclusion to which the commissioner arrived, he
understandably did not consider whether the sanction of
dismissal is
appropriate. As a result, there is no evidence before me of factors
that are relevant to the consideration of the
appropriate sanction.
As a result, I am unable to make any finding as to what would
constitute the appropriate sanction in the
circumstances. I
accordingly intend to make an order remitting the matter to the first
respondent
only
for the determination of an appropriate
sanction in respect of both charges.
Costs
[34]
The parties argued and submitted that costs should follow the cause.
The applicant has been successful with its claim and should
accordingly be awarded costs. I see no reason to order otherwise.
Order
[35]
In the result, I make the following order
(a) The award of the
commissioner is reviewed and set aside and substituted with the
following
(b) The third respondent
is guilty of misconduct in charge 1.
(c) The third respondent
is guilty of misconduct in charge 2.
(d) The matter is
remitted to the first respondent
only
for determination of the
appropriate sanction by a commissioner other than the second
respondent, such commissioner to determine
the appropriate sanction
after receiving and considering evidence on mitigating and/or
aggravating factors and any legal argument
that the parties may wish
to present on sanction.
(e) The third respondent
is to pay costs.
_____________
S
Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant : MH Marcus
Instructed
by : Lebea Associates
For
the Respondent: M Khang
Instructed
by:
Mphafi Khang Inc
[1]
Act
66 of 1995
[2]
[2007] ZALC 66
;
[2014]
1 BLLR 20
LAC
[3]
At
para 2. See also Sidumo v Rustenburg Platinum Mines Ltd
[2007] 12
BLLR 1097
(CC) para 110
[4]
Record
p69
[5]
[6]
Clause
14.4 reads “
14.4
The accounting officer may ratify any minor breaches of the
procurement process by an official or committee acting in terms
of
delegated powers or duties which are purely of a technical nature
”.
[7]
Transcript
p132-133
[8]
Transcript
p82
[9]
[10]
Transcript
p85-87
[11]
p162
[12]
p100
[13]
p104,p121
[14]
p124-125