IMATU obo Hobe v Merafong City Local Municipality and Others (J960/17) [2017] ZALCJHB 154; [2017] 10 BLLR 1040 (LC) (12 May 2017)

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[2017] ZALCJHB 154
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IMATU obo Hobe v Merafong City Local Municipality and Others (J960/17) [2017] ZALCJHB 154; [2017] 10 BLLR 1040 (LC) (12 May 2017)

Reportable
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No: j960/17
In
the matter between:
IMATU OBO DANIEL
MATWAKAZIWA
HOBE
Applicant
and
MERAFONG CITY LOCAL
MUNCIPALITY
First Respondent
THE ACTING
MUNICIPAL MANAGER:
MERAFONG CITY
LOCAL
MUNICIPALITY –
MS ANTOINETTE
RINKY NGWENYA
Second Respondent
THE EXECUTIVE
MAYOR:
MERAFONG CITY
LOCAL
MUNICIPALITY –
COUNCILLOR
MAPHEGO
MOGALE-LESTSIE
Third Respondent
Heard
:
09 May 2017
Delivered
:
12 May 2017
Summary:
(Urgent application – unlawful suspension – Regulations 5
and 6 of the Local Government: Disciplinary
Regulations for Senior
Managers – suspension unlawful – employee’s
representations not considered)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an urgent application launched on 2 May 2017 for a final
interdict to declare the suspension of the applicant on 21
April 2017
unlawful. The Applicant is employed as the Executive Manager:
Community Services. He is a Senior Manager for the purposes
of the
Local Government: Disciplinary Regulations for Senior Managers 2010
(“the regulations”). After his suspension,
he did make
one further attempt to try and persuade the respondent to uplift his
suspension and when that was unsuccessful he brought
this
application. I am satisfied that he was not dilatory in coming to
court and that he did so with the requisite degree of urgency.
[2]
Arising out of perceived lack of progress in rehabilitation of a
landfill site project which was behind schedule, a special
municipal
Council meeting on 30 March 2017 decided that the applicant and the
acting municipal manager should be suspended and
that they should be
given letters advising them of the Council’s intention to
suspend them and giving them an opportunity
to make representations
why they should not be suspended for allegations regarding lack of
progress on the site. Although the resolution
appears to suggest that
the decision to suspend the two managers had already been taken at
that meeting, when that is read in the
context of the notices of
intention to suspend being issued and the opportunity to make
representations been provided, I am satisfied
that the Council was
merely expressing its view at that stage that their suspension ought
to be considered.
[3]
It appears that the Council was alerted to the lack of progress by a
notice being issued by the Gauteng Department of Agriculture
and
Rural Development (“GDARD”) regarding the applicant’s
non-compliance with permit conditions of the Rooipoort
landfill site.
Previously, on 24 November 2016 the council had taken a resolution in
response to a pre-notice of non-compliance
with the site permit
conditions. That resolution acknowledged that budget provisions for
the site had not been effected due to
financial constraints and that
provision of R10 million should be made in the 2016/2017 financial
year “to effect payments
for work done.” The resolution
further determined that payment must be made to maintain consistent
operations and to avoid
fruitless and wasteful expenditure and that
the appropriation of funding had to be effected for capital funds for
fencing, a leakage
pond, drainage, manhole, boreholes and building
repairs.
[4]
Subsequent to the special council meeting, on 31 March the applicant
was invited to make representations as to why he should
not be
suspended. The letter made it clear that an environmental audit
report and a visit of the counsellors to the site indicated
that no
action had been taken to implement resolutions of the Council
regarding the operation and management of the site. The letter
also
stated why it felt it was necessary to suspend the applicant as his
presence might jeopardise further investigations into
the alleged
misconduct. Pertinent passages in the letter read:
“
The
visit [of members of the portfolio committee tasked with integrated
environmental management] revealed that there is no improvement
in
the management of the site, regardless of the R 10,000,000.00 which
was allocated for the operation and maintenance of the site.
The
supervisor of Mykatrade [the contractor engaged to operate the site]
who was on site on the date of the visit also confirmed
that there
was nothing happening on the site...
In
the contents of the Audit Report, GDARD remarked as follows:
“
The Department is not pleased to see that there were no
improvements on partial and non-compliance issues identified in the
previous
audit and that no actions have been undertaken by MCL M to
address some of the partial compliance issues identified in the
previous
audit”
.
The
GDARD Audit report and the visit from the relevant Councillors is an
indication that no action has been taken to implement the
resolutions
taken by the Council regarding the operation and management of the
Rooipoort Landfill site to avoid fruitless and wasteful
expenditure.
Due
to the serious nature of the above alleged misconduct against you,
your seniority and potential influence to employees of the

municipality, Council has reason to believe that your daily presence
in the municipality and its premises may jeopardise any further

investigations into the above alleged misconduct against you, cause
detriment to the stability of the municipality, interfere with
the
potential witnesses and lead you or any other employee to commit
further acts of misconduct.
It
is with the above reasons that the municipality is considering to
suspend you with full pay and benefits.
In
compliance with Regulation 6 of the local government: Disciplinary
Regulations for Senior managers you are invited to make
representations
to the municipal council within 7 days from the date
of receipt of this notice as to why you should not be suspended.”
[5]
The nub of the complaint of alleged misconduct appeared to be a
perception that despite R 10 million being allocated for the

operation and maintenance of the site, fruitless and wasteful
expenditure must had been incurred in view of the fact that there
was
no improvement in the landfill site. Accordingly, he was invited to
make representations within seven days in terms of Regulation
6 of
the regulations.
[6]
The applicant claims that he was unable to identify which resolutions
of the Council had not been implemented and accordingly
was unable to
state whether or not resolutions have been implemented or how they
had been implemented. Therefore, on 4 April he
requested documents
enabling him to respond to the letter of suspension including signed
minutes of the portfolio committee meeting
held on 29 March and the
items submitted to the Council to motivate for his suspension.
[7]
On 12 April the applicant received a letter accompanied by unsigned
draft minutes and the item that was presented to the Council
on 30
March to motivate for his suspension. Reading that documentation, the
applicant surmised that the call for his suspension
was based on the
misapprehension that the R10 million allocated had in fact been spent
without any sign of any improvements.
[8]
On 19 April, the applicant’s union submitted a letter on his
behalf addressing the issue of his intended suspension. Although
the
letter requested further information and documentation and raised
concerns that the regulations 5 (1) and (2) had not been
complied
with, it did make representations on whether there was any reason to
believe he had committed misconduct and why he should
not be denied
access to the workplace. This was expressed in the following terms:
“
9.
We submit there is no justifiable reason to believe, even on a
prima
facie
basis that Mr Hobe has committed misconduct. In terms of
the letter of intention to suspend, it is alleged that an amount of
R10m
was allocated for the operation and maintenance of the Rooipoort
landfill site and that despite such allocation no operational and

management action was taken to avoid fruitless and wasteful
expenditure in connection with that site. Mr Hobe’s response
is
that he has not been able to access the allocated R 10m to pay the
contractor who has been appointed to conduct operation and

maintenance of the landfill site because the municipality’s
cash-strapped. In other words, the municipality simply does not
have
money to pay the contractor, which is led to a cessation of work by
the contractor and the demand of payment for work done.
The Chief
Financial Officer and Municipal Manager signed off on written
authorisations for the contractor to be paid, but the contract
could
not be paid because of insufficient funds. Both the CFO and the
municipal manager are aware of these facts.
...
10....
11.
It is clear that the work stoppage and the failure to operate and
maintain the landfill site was through no fault of Mr Hobe.
It was
rather the fault of the municipality’s cash-strapped situation.
The allegations against Mr Hobe are, therefore, without
any basis in
the simply no justifiable reason to believe that Mr Hobe has
committed misconduct in this regard.
12.
We submit that there is no justifiable reason to deny Mr Hobe access
to the workplace. The Municipal Manager and CFO are already
in
possession of all documents that are relevant to the Rooipoort
landfill project. Mr Hobe cannot intimidate the municipal manager
or
the CFO because these are senior official[s]. Mr Hobe could also not
intimidate the contractor who was appointed through a fair
bidding
process, has a binding contract with the municipality and is
independent. It is unthinkable that Mr Hobe and the contract
would
collude together to frustrate any investigation as this would be
unethical and there does not seem to be any suggestion that
Mr Hobe
or the contract to have behaved in a fraudulent or corrupt or
generally unethical manner. The allegations against Mr Hobe
,
unfounded though they are, do not paint such a picture of suspected
impropriety.”
[9]
In the minute of the 20 April meeting where the discussion of the two
managers’ proposed suspension took place, the following
is
recorded
inter alia
:
“
A
letter dated 20 April 2017 was received from IMATU acting on behalf
of the [applicant] stating that they intend to respond to
the letter
of intention to suspend but they require further information. A copy
of the letter is attached hereto. The acting municipal
manager ha
s
also not responded with reasons not to suspend
him but still
require further information.
The minute then cites
Regulation 6 in full and continues....
“
The
Municipality has a set procedure in terms of financial delegations
and reporting procedure. This investigation is based on the

mismanagement of the waste disposal site, with the potential
detrimental effects that a possible suspension of the site license

could have on the Municipality.
It
is essential that the management of the site gets back on track
.
In view of the direct influence that the senior managers have on
the daily execution work done, in terms of financial delegations
and
approval of work done, as well as decisions to be taken to submitted
that they be suspended as a precautionary matter
.
The
municipality
has also not received any constructive reasons
from the which is why they should not be suspended.”
(Emphasis
added)
[10]
The letter of suspension issued to the applicant the day after
Council meeting replicates the content of the letter of intention
to
suspend and includes the last mentioned paragraphs of the minute of
the Council meeting set out above. The applicant alleges
that the
letter did not respond to his representations whether there were
justifiable reasons to believe that misconduct had been
committed in
view of the R10 million that was allocated not being available. He
also claims that it did not respond to his representation
as to why
there was no justifiable reason to deny him access to the workplace.
In answer to this claim, the respondent argued that
access to the
workplace was not one of the criteria included in Regulation 6 and
that the applicant had been requested to respond
to the reasons
referred to in regulation 6 (1)(a) (i) and (iii)  and 6(1)(b)(i)
and (ii) but he did not address these.
[11]
On 26 April, a further letter was sent to the council by the union
reiterating the request for a Council resolution inviting
the
applicant to make representations why he should not be suspended and
the documents which the Council considered. It further
called upon
the Council to revoke the suspension on the basis that it had not
complied with regulation 5 in the course of implementing
his
suspension failing which it would approach the court on an urgent
basis. In a letter of reply, the Acting Municipal Manager
claimed
that the council had taken account of both regulations 5 and 6 in
suspending the applicant.
Breach
of a clear right?
[12]
The applicant claims that his suspension was unlawful for a number of
reasons. In brief these are:
12.1
The allegations in the letter notifying him of the council’s
intention to suspend him were vague in the absence
of the inspection
report of the landfill.
12.2
There was no reasonable basis to believe that he had committed
misconduct before a decision was taken to suspend
him as required by
regulation 6(1) and regulation 5(3) of the regulations because it was
stated in the union’s submissions
that the inability to improve
the landfill site was because of the unavailability of the R 10
million which had been allocated
since the funds were approved on 24
November 2 016.
12.3
In the absence of an independent investigator being appointed by
Regulation 5 (3) he could not be suspended.
[13]
Furthermore, the applicant claims that his suspension was in breach
of regulations 6(3) and (4) because even though his submissions
were
presented to the Council before he was suspended those submissions
could not have been considered when one has regard to the
reasons for
his suspension given by the Council. His submissions made it clear
that there was no not even a
prima facie
basis for believing
he was guilty of misconduct or that there was a reason to deny him
access to the workplace.
[14]
Regulations 5 and 6  read:
5.
Disciplinary procedures.
(1)
Any allegation of misconduct against a senior manager must be brought
to the attention of the municipal council.
(2)
An allegation referred to in sub-regulation (1) must be tabled by the
mayor or the municipal manager, as the case may be, before
the
municipal council not later than seven [7] days after receipt
thereof, failing which the mayor may request the Speaker to convene
a
special council meeting within seven [7] days to consider the said
report.
(3)
If the municipal council is satisfied that –
(a)
there is a reasonable cause to believe that an act of misconduct has
been committed by the senior manager, the municipal council
must
within seven [7] days appoint an independent investigator to
investigate the allegation[s] of misconduct; and
(b)
there is no evidence to support the allegation[s] of misconduct
against the senior manager, the municipal council must within
seven
[7] days dismiss the allegation[s] of misconduct.
(4)
The investigator appointed in terms of sub-regulation (3)(a) must,
within a period of thirty [30] days of his or her appointment,
submit
a report with recommendations to the mayor or municipal manager, as
the case may be.
(5)
The report contemplated in sub-regulation (4) must be tabled before
the municipal council in the manner and within the timeframe
as set
out in sub-regulation (2).
(6)
After having considered the report referred to in subregulation
(4),
the municipal council must by way of a resolution institute
disciplinary proceedings against the senior manager.
(7)
The resolution in sub-regulation (6) must-
(a)
include a determination as to whether the alleged misconduct is of a
serious or a less serious nature;
(b)
authorise the mayor, in the case of municipal manager, or municipal
manager, in the case of the manager, directly accountable
to the
municipal manager to -
(i)
appoint -
(aa)
an independent and external presiding officer; and
(bb)
an officer to lead evidence; and
(ii)
sign the letters of appointment.
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 workplace may -
(i)
jeopardise
any investigation into the alleged misconduct;
(ii)
endanger
the well-being 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 municipal
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 [7] days. (4) After having

considered the matters set out in subregulation (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] days after such suspension.
(6)
(a) If a 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.”
[15]
The applicant had contended that the suspension should have been
preceded by an investigation contemplated in Regulation 5
or that
certain steps should have been taken under that regulation before his
suspension. Although the two procedures appear consecutively,
there
is nothing in Regulation 6 to suggest a precautionary suspension may
only be implemented after an investigation under Regulation
5. As a
matter of logic, it stands to reason that it may be necessary to
suspend an employee while such an investigation is being
conducted.
[16]
I also
agree with the respondent in its reliance on the decision of the
Labour Appeal Court in
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
.
[1]
In
that case, the court was concerned with the interpretation of Chapter
7 of the SMS Handbook, including paragraph 2.7(2) which
provided as
follows:
“
(2)
Precautionary suspension or transfer
(a)
The employer may suspend or transfer a member on full pay if –
•
the member is alleged to
have committed a serious offence; and
•
the employer believes
that the presence of a member at the workplace might jeopardise any
investigation into the alleged misconduct,
or endanger the well-being
or safety of any person or State property.
(b)
A suspension or transfer of this kind is a precautionary measure that
does not constitute a judgment, and must be on full pay.
(c)
If a member is suspended or transferred as a precautionary measure,
the employer must hold a disciplinary hearing within 60
days. The
Chair of the hearing must then decide on any further postponement.”
[17]
The LAC
found that the reference to an investigation into the alleged
misconduct in the above provision did not mean that an investigation

necessarily had to be underway, though in that case too, as a matter
of fact, there had in fact been a decision taken to initiate
an
investigation when the suspension was contemplated.
[2]
In this case, having regard to the wording of Regulation 6, which
does not even make a single reference to an investigation under

regulation 5 or to any of the steps in regulation 5, there is even
more reason to interpret regulation 6 as a measure which can
be
implemented quite independently of regulation 5, even if common sense
dictates that they probably ought to proceed in tandem.
Accordingly,
I cannot agree with the applicant that his suspension was unlawful
because it should have been preceded by the appointment
of an
independent investigator or any other steps under regulation 5. In
this case, the council had taken a decision that an investigator

should be appointed, but the appointment had not yet been made by
that the time.
[18]
I am also satisfied that for the purposes of addressing a
prima
facie
case of alleged misconduct, the gravamen of the complaint
was clear: despite the allocation of significant funds pursuant to
the
Council resolution in November 2016, none of the expected
progress had been made and as an accountable official, the failure
was
at least partly his responsibility. It is clear from the
applicant’s letter quoted above that he directly addressed this
issue, even though he was requesting further information. He even
went to the extent of providing supporting documentation about
delays
in paying the contractor and to demonstrate that nothing like the
amount allocated had been spent. All of this showed that
he
understood the nature of the complaint well enough to put a
prima
facie
case rebutting the claim that it was his fault.
[19]
Much
reliance was placed by the respondent on the judgement in
Tsietsi
v City of Matlosana Local Municipality and another
[3]
in
which the court cautioned against imposing too onerous a duty on a
municipality wishing to suspend a senior manager. The discussion
by
the court proceeded as follows:
“
[10]
Applicant placed reliance,
inter
alia
,
on the case of
Lebu
v Maquassi Hills Local Municipality and others
(
2
).
[4]
In that case Van Niekerk J had this to say about regulation 6:
“
[16]
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

jeopardise 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
. . .”
[11]
Reference was also made to an unreported judgment in which Steenkamp
J stated that in explaining the municipality’s apprehension

that an employee might jeopardise an investigation that repetition of
the words of the Regulation is not enough but that a basis
for these
fears has to be set out “ie why they had reason to believe that
the applicant’s presence at the workplace
may lead to any of
these consequences”
[5]
[12]
In my judgment, the above authorities on which 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 a 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 a 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.
[13]
In dealing with regulation 6(1) it is important not to lose sight of
the principle that the suspension is precautionary and
not punitive,
and it contains a safeguard that the suspension may not be extended
indefinitely. In this regard the LAC judgment
in
Member of
the Executive Council for Education, North West Provincial Government
v Gradwell
is instructive. That matter dealt with
precautionary suspension in terms of the SMS Handbook in the Public
Service. The court
per
Murphy AJA stated that:
“
[44]
The proposition that all suspensions should be procedurally fair to
avoid the stigma of an unfair labour practice, on the other
hand,
requires some qualification. Fairness by its nature is flexible.
Ultimately, procedural fairness depends in each case upon
the
weighing and balancing of a range of factors including the nature of
the decision, the rights, interests and expectations affected
by it,
the circumstances in which it is made, and the consequences resulting
from it. When dealing with a holding operation suspension,
as opposed
to a suspension as a disciplinary sanction, the right to a hearing,
or more accurately the standard of procedural fairness,
may
legitimately be attenuated, for three principal reasons. Firstly, as
in the present case, precautionary suspensions tend to
be on full pay
with the consequence that the prejudice flowing from the action is
significantly contained and minimised. Secondly,
the period of
suspension often will be (or at least should be) for a limited
duration. The SMS Handbook for example imposes a 60-day
limitation.
And, thirdly, the purpose of the suspension – the protection of
the integrity of the investigation into the alleged
misconduct –
risks being undermined by a requirement of an in-depth preliminary
investigation. Provided the safeguards of
no loss of remuneration and
a limited period of operation are in place, the balance of
convenience in most instances will favour
the employer. Therefore, 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.”
[14]
In this application, the case made for the applicant seeks to have
allegations of misconduct contained in the precautionary
suspension
letter presented in such detail so that he can virtually plead in
relation thereto. As the second respondent pointed
out, the nature of
the information sought by applicant through his attorney’s
request for further particulars, in order to
make his
representations, may actually prejudice the investigation if
provided.
[15]
In view of the above, I am quite satisfied that the precautionary
suspension letter recorded above meets the require
ments
of section 6(1) of t
he
Regulations. The LAC
Gradwell
judgment
cautions us not to forget the purpose of precautionary suspension nor
overlook safeguards contained in prescripts such
as regulation 6. The
jurisprudence of this Court in these matters should not be read as
setting the bar so high that the duty to
investigate alleged
financial irregularities by accounting officers in municipalities is
rendered near impossible to carry out.
[20]
The
cautionary note sounded by the court in paragraphs [12] and [13] of
the extract from
Tsietsi
has
been endorsed in other judgements of the Labour Court.
[6]
The respondent also emphasised the following principle highlighted in
Mere’s
case
(in the underlined portion of the extract below):
In
Mojaki v Ngaka Modiri Molema District Municipality and others the
court held as follows:
“
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 . . .
”
[37]
Regulation 6 thus contemplates the opportunity to make
representations before the final decision is taken to suspend a
senior
manager. That means that the senior manager must at least be
placed in a position where he or she is able to make such
representations.
It is for this reason that the Municipality must
give the senior manager notice of intention to retrench, and in such
notice call
upon the senior manager to make representations.  In
Lebu v Maquassi Hills Local Municipality and others (2)
[7]
the court held as follows insofar as it concerns this notice:
“
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 . . .”
[38]
A similar approach was followed in Retlaobaka v Lekwa Local
Municipality and another
[8]
where the court said:
“
The
whole object of inviting representations from the employee on whether
he or she should be suspended would be rendered nugatory
if the
employee is in the dark as to why the employer believes he or she
should not be at the workplace until the disciplinary
proceedings are
concluded. Without knowing the employer’s reasons, the employee
could only guess what they might be and his
or her response would be
mostly superfluous and speculative answers to unknown propositions. I
accept that before taking the decision
to suspend the employee the
council only needs to have reason to believe it would be desirable
for one or more of the reasons mentioned
based on the information it
has before it, but that information also includes the employer’s
representations on the purpose
of the proposed suspension, which
clearly must be made known to the employee for those representations
to be meaningful.”
[9]
[21]
The cautionary principles stated above against turning the procedure
of a precautionary suspension into a preliminary hearing
are points
well made. In the main, they are concerned that an employer
contemplating suspending an employee need not demonstrate
with any
degree of certainty that the employee is guilty of misconduct or that
the employee probably will interfere with the investigation
of the
alleged misconduct. Obviously, it is not necessary for the employer
to place evidence before the employee but simply to
outline the
allegations of misconduct that will be investigated. In relation to
the reasons why the employer believes the employee’s
continued
presence in the workplace pending the investigation would be a
problem. Regulation 6 is very explicit about what must
be set out.
[22]
The principles enunciated above only address the extent to which an
employee must be given an opportunity to address the municipal

employer before a decision is taken to suspend them. Before taking
the decision, the municipality must then consider its reasons
and the
representations of the employee as to why they should not be
suspended. The municipal council must at least apply its mind
to its
reasons and the employee’s representations. The decision to
suspend the employee is not legally validated just because
the
employer goes through the motions of giving the employee an
opportunity to make representations and tabling those representations

before the Council.
[23]
It must at least consider whether the representations of the employee
allay any of the concerns it had which motivated it to
consider the
suspension. In
Gradwell
the LAC also held that:
“
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 to meaningfully 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.”
[24]
In this case, the applicant does not dispute that the anticipated
work on the landfill site had not been done but advances
a simple
explanation namely that the financial resources necessary to do the
work were simply not available. This claim ought to
have been an
elementary issue for the council to verify with the Acting Municipal
Manager or the Chief Financial Officer. The letter
containing these
representations was tabled at the Council meeting which resolved to
suspend him, but remarkably the Council expressed
the view that he
had made no representations why he should not be suspended. Whether
because of an oversight or some other reason,
it appears that the
meeting did not actually consider these representations because the
minute only mentions his request for additional
information.
[25]
Similarly, when it comes to considering whether his exclusion from
the workplace was justifiable, there is also nothing to
indicate that
his representations about the improbability of him being able to
influence anybody involved in the management of
the landfill project
were considered. It is interesting in this regard that in the council
minutes and the answering affidavit,
the Council went so far as to
suggest that because he had not made representations expressly in
terms of the provisions of regulation
6(1), he had not made any
representations as required. Firstly, he was not required to follow
the specific format regulation 6
(1). All that he was required to do
to in order to have his representations considered was to make
written representations ‘
why he or she should not be
suspended”.
This he did and his representations should have
been considered.
[26]
In the circumstances, I am satisfied that the respondent afforded the
applicant an opportunity to make representations, but
when he did so
the Council did not consider them and accordingly acted in breach of
Regulation 6 (3) and consequently his suspension
was unlawful. The
value of an opportunity to make representations is entirely negated
if they are not considered.
[27]
I note in passing that, given the nature of the alleged misconduct
and his response which at least raised a material doubt
about whether
wasteful or fruitless expenditure might actually have been incurred
at all, that ought to have been a material consideration
in deciding
whether his exclusion from the workplace was justifiable. During the
argument of the matter, I commented on the fact
that to date the
respondent has not addressed the applicant’s contention that
the allocated funds were not made available
at all. If it had
considered this simple response to its allegation of misconduct, it
is telling that it makes no attempt to explain
why this
representation would not have made any difference to its decision to
suspend the applicant.
Lack
of alternative remedy
[28]
As his claim is based on unlawfulness and other forums such as the
bargaining Council’s or CCMA’s lack of jurisdiction
to
deal with such a claim, he has no alternative remedy. The restoration
of normal employment status that comes with the lifting
of suspension
is the most complete remedy to an unlawful suspension. I appreciate
that the applicant may have a claim for unfair
suspension, but that
does not disentitle him to challenge its unlawfulness and obtain the
normal remedy which flows from a declaration
of unlawfulness.
Balance
of convenience
[29]
It is true that the applicant is on a fixed term contract which is
due to expire soon. However, in the absence of the respondent

advancing reasons why the applicants answer to its motivation for
suspending him should be rejected, the prejudice the respondent
might
suffer compared to the prejudice to the applicant’s standing to
end his contract under suspension outweighs any inconvenience
his
return to work might cause the respondent.
Costs
[30]
The applicant was represented by a union official and the union did
not press the issue of costs, which I would otherwise have
granted.
Order
[1]
The application is dealt with as one of urgency and the normal rules
for the conduct of
motion proceedings in the Labour Court relating to
service and time periods are dispensed with.
[2]
The first respondent’s suspension of the applicant, affected
through a letter issued
by the third respondent dated 21 April 2017
is declared unlawful.
[3]
The first respondent’s suspension of the applicant is set aside
and the respondents
must allow the applicant to return to work and
resume his duties with immediate effect.
[4]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
V
G Mkwibiso of IMATU
RESPONDENTS:
ESJ
Van Graan SC instructed
by
De Swart, Vogel & Myambo.
[1]
[2012] 8 BLLR 747 (LAC)
[2]
At
755-756, paras [24] – [27].
[3]
[2015] 7 BLLR 749 (LC)
[4]
(2012) 33 ILJ 653) (LC)
[5]
Nothnagel
v Karoo Hoogland Municipality and Others
(2014) 35 ILJ 758 (LC)
[6]
See
e.g
Mere
v Tswaing Local Municipality and another
[2015] 10 BLLR 1035
(LC) at 1046, paras [39] – [40] and
Barnard
v Kannaland Municipality and Others
(C714/2016) [2016] ZALCCT 52 (23 November 2016) at [23].
[7]
(2012) 33 ILJ 653 (LC) at para [16]
[8]
(2013) 34 ILJ 2320 (LC) at para [8]
[9]
At
1045-6.