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[2017] ZALCJHB 47
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Pietersen v Dr Beyers Naude Local Municipality (P05/17) [2017] ZALCJHB 47 (14 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: P 05/17
In the
matter between:
MARTIN PIETERSEN
Applicant
and
DR BEYERS NAUDE LOCAL
MUNICIPALITY
Respondent
Heard:
02 February 2017
Delivered:
14 February 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The
Labour Appeal Court in
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[1]
has long confirmed that the Labour Court has the necessary
jurisdiction to entertain urgent applications pertaining to the
uplifting
of suspensions. However, the Labour Court’s
intervention should only be in circumstances that are urgent,
extraordinary or
compellingly.
[2]
This
Court has over the years, decried well-heeled senior civil servants
who in the face of serious allegations of misconduct have
continuously and unashamedly, approach it with contrived urgent
applications to either set aside lawful and legitimate suspensions
imposed on them, or to intervene in internal disciplinary proceedings
against them
[2]
.
It is apparent that in most of these cases, the intention of the
applicants is merely to circumvent the dispute resolution procedures
as provided for in the Labour Relations Act, or to seek reinstatement
in their positions, even when their presence in the workplace
had
turned out or proved to be untenable.
[3]
The floodgates however remain open despite
the concerns raised by this court and the concomitant punitive cost
orders made in such
cases. One can only surmise that it is either
because these undeterred applicants, have a understanding and meaning
of the concepts
of ‘urgent’, ‘compelling’ or
‘exceptional’, or alternatively, it is more their sense
of self-righteousness
and narcissistic instincts that drives them to
approach this court irrespective of the merits of their applications.
[4]
This urgent application before the court is
a case in point, particularly in view of the nature of and the
implications of the relief
sought. The application initially came
before Prinsloo J on 24 January 2017, and was postponed to afford the
Applicant an opportunity
to file his replying affidavit. The
Applicant, a Municipal Manager, seeks an interim order, setting aside
his suspension which
took effect from 10 January 2017;
and
restraining the Respondent from suspending or terminating his
contract of employment, pending the finalisation of his appeal(s)
to
the High Court and the Supreme Court of Appeal against his conviction
and sentence in the Oudtshoorn Regional Court under case
number OSH
182/2013.
(My emphasis)
[5]
The nature of this type of relief is
mind-boggling. It suggests that if granted, the Applicant should
remain employed despite his
criminal conviction, and until such time
that he has exhausted all his rights to lodge an appeal up to the
Supreme Court of Appeal
against his conviction. Whether that appeal
process takes a life time or not is irrelevant as far as the
Applicant is concerned,
as his ‘right’ to the position
and the salary trumps everything else, including the clean and smooth
administration
of the municipality.
Background:
[6]
The Applicant, despite being plagued by a
plethora of criminal charges and other allegations of misconduct,
remarkably managed to
be appointed as a Municipal Manager in three
different local municipalities. He was initially appointed as
Municipal Manager of
Ukhahlamba District Municipality between 2001
and 2006. He was thereafter appointed to the same position in
Oudtshoorn Municipality
in 2007, was dismissed, and was then
reappointed by the same municipality in August 2011.
[7]
The Applicant’s brush with the
criminal justice system emanates from what he referred to as a
‘personal vendetta’
waged against him by certain
residents within Oudtshoorn. That had led to him facing eight
separate criminal investigations arising
out of his employment in
that Municipality. In 2011 he was charged with fraud, and alternative
counts of theft and contravening
the various provisions of the
Municipal Finance Management Act (The MFMA). He was subsequently
convicted in the Oudtshoorn Regional
Court and sentenced to ten
months imprisonment. He had successfully appealed against his
conviction and sentencing in the Western
Cape High Court in 2015.
[8]
Having
resigned from his position in Oudtshoorn, he was in December 2013,
appointed a Municipal Manager of Camdeboo Local Municipality
in Graff
Reinet. Significant with his appointment is that at the time that he
had applied and was interviewed for that post, there
were further
similar criminal charges pending against him before the Bellville
Commercial Crimes Court. In regards to these charges,
he had
successfully applied for an acquittal and discharge in terms of the
provisions of section 174 of the Criminal Procedure
Act (The CPA)
[3]
.
[9]
A separate investigation was similarly
conducted by the Minister of Co-operative Governance &
Traditional Affairs into the appointment
of the Applicant in various
municipalities, and a report in this regard was released in November
2013. The report traced his employment
in Ukhahlamba and it was
established
inter alia
that the municipality had litigated against him in respect of money
owed on a municipality vehicle; and that the Auditor General’s
report into the handling of the municipality’s finances and
assets had made an adverse finding against him.
[10]
It was also established in that report that
when he was initially dismissed from Oudtshoorn, it was as a result
of having used municipal
funds to defend a personal defamation claim
against him, and when he resigned, he was paid a settlement amount.
In essence, the
report viewed the Applicant’s appointment at
Camdeboo Municipality as null and void on the basis of his
unsuitability on
a number of grounds.
[11]
In 2014 the Applicant again stood trial as
a co-accused in the Oudtshoorn Regional Court on charges of fraud and
corruption. He
had again utilised the provisions of section 174 of
the CPA to secure an acquittal. In early 2015, he was again tried as
a co-accused
in the Oudtshoorn Regional Court on similar charges as
before, and again secured an acquittal in terms of the same
provisions
[12]
During August 2016, three local
municipalities, viz, Camdeboo, Ikwezi and Baviaan were amalgamated
into Dr Beyers Naude Local Municipality,
the Respondent. At the time
of the amalgamation, the Applicant was the incumbent Municipal
Manager of the Camdeboo and was appointed
as the Respondent’s
acting Municipal Manager, which appointment was confirmed on 15
September 2016 at a Special Council meeting.
That appointment was for
a period until 30 November 2017.
[13]
At the time of the Applicant’s
appointment by the Respondent, there were five criminal charges
pending against him in the
Oudtshoorn Regional Court. On 7 December
2017, that court issued an
ex tempore
judgment in terms of which the Applicant was found guilty on all the
five charges under case number OSH183/13. Sentencing in the
light of
the conviction is set to take place in March 2017. Subsequent to his
conviction, the Applicant wrote a letter to the Respondent
advising
it of the Court’s findings. He stated his intention to
challenge the finding and requested special leave until 13
December
2016. He was granted the leave as requested. Upon obtaining legal
advice, the Respondent’s Council at a meeting
of 30 December
2016 resolved that the Mayor should appoint an independent
investigator, and to request the Applicant to submit
written
representations as to the reason he should not be suspended.
[14]
On 6 and 9 January 2017, the Applicant had
personally and through his attorneys of record, submitted his
representations. The Council
then took a decision after consideration
of those representations to place the Applicant on suspension with
full pay with effect
from 10 January 2017. No charges had been laid
against the Applicant as yet in the light of the on-going
investigations, which
were expected to be finalised by 30 January
2017.
Evaluation:
[15]
Since
the nature of the relief sought by the Applicant is interim, it is
trite that he must demonstrate (a) a
prima
facie
right (although open to some doubt) to the final relief that will be
sought in due course; (b) an apprehension of irreparable harm,
if the
application is not granted and the applicant ultimately establishes
his claim; (c) that the balance of convenience favours
him; and (d)
the absence of any other satisfactory remedy
[4]
.
Prior to dealing with these requirements, the issue however is
whether this application should be treated as urgent.
Urgency:
[16]
The application was launched on 17 January
2017, some ten days after the suspension was confirmed. Having set
the matter down on
an urgent basis on 24 January 2017, it had to be
postponed as the Applicant needed time to file a replying affidavit.
The Applicant
contends that the application should be accorded
urgency on the basis that he had no alternative remedy in that once
he was suspended,
and his contract of employment was terminated, he
would lose his income and would certainly face financial ruin. He
further averred
that given the nature of his job, which required that
he be seen as a person of integrity, he would not be able to secure
alternative
employment timeously so as to prevent financial ruin to
him and his family.
[17]
The
Labour Appeal Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[5]
explained
the requirements of Rule 8 as follows;
“
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and the degree to which
the
ordinary applicable rules should be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant is
not
entitled to rely on urgency that is self-created when seeking
deviation from the rules”.
[18]
The import of the above is that an
applicant has to set forth explicitly the circumstances which he
avers renders the matter urgent;
and must state the reasons why he
claims that he cannot be afforded substantial redress in due course.
The court can at its discretion,
and in the light of the averments
made, come to the assistance of the applicant because substantial
redress cannot be obtained
at a later date, or even if obtained at a
later date, it would be of little value.
[19]
The mere fact that an applicant is entitled
to approach the court on an urgent basis, including having the luxury
to decide when
the matter should be set down and when the respondents
should file any answering papers, does not in itself lead to an
inference
that a matter is urgent. Thus, it is not up to the
applicant party, notwithstanding these luxuries, to determine whether
a matter
is urgent or not. It is also the haste with which the
applicants also approached the court to assert their right to the
relief
sought that indicates whether the matter should be treated as
urgent or not.
[20]
The difficulty in this case is that the
Applicant has not even come close to setting out the reasons why this
application should
be treated as urgent. It took him ten days after
his suspension was confirmed before he could approach the Court. Be
that as it
may, he made no attempt to explain this ten days’
delay, and I am not convinced that he had acted with the necessary
haste
with which he expects this court to treat his matter.
Furthermore, to the extent that the Applicant has raised ‘financial
ruin’ as a result upon which urgency is sought, it was common
cause that he was suspended with full pay, and the purported
‘financial ruin’ is not real as long as he remains on
paid suspension. The averments surrounding the Applicant’s
integrity and his ability to secure alternative employment are
nevertheless misplaced in that he has merely been suspended and
not
dismissed, and the court cannot indulge in suppositions.
[21]
Central however to the issue of urgency is
whether the Applicant cannot obtain substantive relief in the normal
course. This in
my view also depends on the merits of his application
and the relief that he seeks. As already indicated earlier in this
judgment,
the nature of relief he seeks is far-reaching, and it is
inconceivable if not unreasonable, to expect an employer to keep an
employee
in its employ after a criminal conviction, pending the final
determination of an appeal process. To the extent that he remains
suspended, there is no basis in the light of the other considerations
why it can be concluded that he cannot obtain substantive
relief in
due course. In the end however, it is my view that the urgency
claimed in this case is clearly self-created, and the
matter ought to
be struck off the roll. I however propose to dispense of the merits
of the application given the nature of the
pleadings and the relief
sought.
The
merits:
[22]
Notwithstanding the nature of the relief
sought, it is still not clear on the papers as to on what basis the
suspension is challenged.
No reference was made to the suspension
being unlawful, invalid or unfair, and it is not clear what right is
sought to be protected.
All that the Applicant had alleged was that
he had a clear right to fair labour practices, and that the
suspension was a breach
of that right and the right to remain
employed pending the finalisation of the criminal proceedings against
him, which included
his right to appeal to the higher courts if the
need arose.
[23]
It was only in the replying affidavit that
the Applicant had amplified the allegations of unfairness pertaining
to his suspension,
contending that the impending disciplinary hearing
was unfair as it was premature, and that the suspension went against
the parties’
agreement reached at the commencement of his
employment concerning the pending criminal charges against him.
[24]
A difficulty that arises is that it is
trite that a case can only be made out in the founding and not
replying affidavit, and not
much value can be placed on the averments
only made in the replying affidavit. In regards to the alleged
agreement however, the
Applicant’s case was that at the time of
his employment by Camdeboo, and having disclosed the pending criminal
charges against,
an agreement was reached with him that the contract
would terminate in the event of him being convicted, and further that
it was
an expressed term of the contract between himself, the then
Mayor, and the Chief Whip, Alfred Pannies, that the contract
would be terminated if he were to be convicted, but only after he had
exhausted all legal avenues open to him to have the conviction
set
aside. Thus according to this agreement, the Respondent could not
suspend or terminate his contract until he had exhausted
all criminal
procedures available to him.
[25]
There are disputes of fact pertaining to
the alleged agreement relied upon by the Applicant. Whether the
Applicant can in essence
rely upon it in contending that his
suspension is unfair has to be examined within the context of the
position he holds and the
implications of his criminal conviction.
This conviction clearly puts his suitability for the position of
Municipal Manager into
question, and that agreement, cannot in my
view supersede the proper administration of the Respondent’s
affairs . Furthermore,
the Applicant was afforded an opportunity to
make representations as to why he should not be suspended, and his
contention that
his presence in his position could not prejudice the
running of the municipality’s administration fails to
appreciate the
implications of his criminal conviction.
[26]
To conclude then, the Applicant has not
established nor demonstrated a clear, let alone a
prima
facie
right to the relief that he
seeks. As also pointed out on behalf of the Respondent, he has
alternative remedies available under
the provisions of the LRA to
seek redress in respect of his suspension. Significantly though,
having had regard to the circumstances
of this case, issues
surrounding alleged ‘financial ruin’ in circumstances
where the Applicant has been placed on suspension
with full pay, or
protection of ‘integrity’ in the face of a criminal
conviction, can hardly qualify as urgent, extraordinary
or
compellingly factors, requiring the court’s intervention.
On the contrary, it is the very circumstances that the
Applicant
finds himself in as a result of his criminal conviction that
militates against any inclination to place him back in his
position.
To the extent that this is the case, there would be no need to
consider other requirements pertinent to such applications.
[27]
In the light of the above, it follows that
his application ought to be dismissed. It is further my view that
given the circumstances
of this case, and further having had regard
to the requirements of law and fairness, the Applicant should be
burdened with the
costs of this application. This is so in that as
matters stand, the Applicant was suspended with full pay, and he is
still to be
called to a disciplinary enquiry. There was therefore no
need in the light the circumstances of this case for him to approach
this
court for interim relief, especially of the nature that he
seeks.
Order:
i.
The Applicant’s application is
dismissed with costs.
_________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv.
J Van Der Schyff
Instructed
by:
Ezechiel Beddy & Associate Attorneys Inc.
For the
Respondent:
Adv. J Partington
Instructed
by:
Chris Baker & Associates
[1]
(2012)
33 ILJ 2033 (LAC); See also
Booysen
v Minister of Safety and Security and Others (2011) 32 ILJ 112 (LAC)
at para 54
[2]
See
Mosiane v Tlokwe City Council (2009) 30 ILJ 2766 (LC) at para 15 –
16; Manamela Ida v Department of Co-operative Governance
&
Traditional Affairs & others Case no: J 1886 / 2013
[3]
Act
51 of 1977
[4]
National
Treasury and others v Opposition To Urban Tolling Alliance and
others
2012 (6) SA 223
(CC) at 235
[5]
2010
31 ILJ 112 at para 18