About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 235
|
|
Thibini v Merafong City local Municipality and Others (J1113/17) [2017] ZALCJHB 235 (26 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not
Reportable
Case
no: J1113/17
In
the matter between:
LANGA
REGINALD
THIBINI
Applicant
and
MERAFONG
CITY LOCAL
MUNICIPALITY
First
Respondent
ANTHONETTE
RINKY NGWENYA AND OTHERS
2
nd
to Further Respondents
Heard:
23 May 2017
Order
delivered: 26 May 2017
REASONS FOR THE ORDER
MABASO
AJ
Introduction
and the Parties
[1]
On 26 May 2017, I made the order in paragraph 29 below, these are the
reasons for the same order. The applicant approached this
Court on an
urgent basis, seeking an order that:
“
1. the
non-compliance with the rules of this Honourable Court pertaining to
process and time limits be dispensed with and that this
matter be
treated as an urgent application in accordance with the provisions of
rule eight of the rules of this Honourable Court;
2. That the First
Respondent and Third to the fifty fifth’s suspension of
the applicant [a]s an Acting Municipal Manager
or Chief Operating
Officer, effected through a letter issued by the Third Respondent ,
dated 21 April 2017, be declared unlawful.
3. Directing that the
First and Third to Fifty fifth Respondents’ suspension of the
Applicant is set aside and they must allow
the Applicant to return to
work and resume his duties as an Acting Municipal Manager or Chief
Operating Officer with immediate
effect.
4. Directing that the
Respondents take all the necessary steps to ensure that the First and
Third to Fifty-Fifth Respondents set
aside the Applicant’s
suspension and allows the Applicant to return to work and resume his
duties as an Acting Municipal
Manager or Chief Operations Officer
with immediate effect...” (sic)
[2]
This matter was argued before this Court on 24 May 2017. I then
directed the parties to file written submissions in respect
of the
application to strike out raised by the applicant in his replying
affidavit, and as to whether this Court has jurisdiction
to hear this
matter, this was following the submission by the applicant’s
representative that he was abandoning his
reliance on section 77(3)
of the Basic Conditions of Employment Act,
[1]
and he was only relying on the provisions of the Labour Relations
Act,
[2]
as contained in
paragraph 142 of the supporting affidavit;
[3]
. The respondents’ representative argued that based on that
this submission this Court does not have jurisdiction to deal
with
the matter.
[4]
[3]
The applicant is Langa Reginald Thibini (the applicant), who is
employed by the first respondent, Merafong City Local Municipality
(the Municipality), as a Chief Operations Officer and at the time of
suspension, he was acting as a Municipal Manager. The third
respondent is the Executive Mayor of the employer. The second
respondent, at the time this matter was referred, was an Acting
Municipal Manager. The fifth to further respondents are councillors
(the councillors).
Application
to strike out the answering affidavit
[4]
The applicant, upon receiving the answering affidavit proceeded to
deliver the replying affidavit wherein he raised the point
that the
deponent to the answering affidavit, Mr Romeo Mohaudi (Mohaudi), has
no personal knowledge of the contents thereof as
he only joined the
employer after the suspension in question. Moreover, the contents of
the affidavit related to what happened
preceding 21 April 2017,which
is the date of the suspension.
The
respondents’ representative, during argument, submitted that
this point was not properly raised before this Court, as
there was no
substantial application in the form of a notice of motion supported
by an affidavit, therefore, it should not be entertained.
[5]
In the
PSA
matter
[5]
the Labour Appeal Court held the following regarding the procedure to
be followed where one applies for an application of this
nature:
“
That being the
case, it would be unfair to ambush an opponent with an application to
strike out without notice to such party, as
has happened in this
matter. The other party must be apprised of the grounds on which the
application is based in order to facilitate
informed and sensible
opposition to such application, if it is opposed.
…
[14] In my
view applications to strike out must be brought upon proper notice to
the other party. The notice must set out the grounds
of the objection
and refer to the specific portions of the affidavit to which the
objection is taken.
The
facts and circumstances of the case will dictate whether it is
necessary for the notice to be supported by an affidavit
.”
(Emphasis added.)
[6]
The Constitutional Court in
Helen
Suzman Foundation
,
[6]
in emphasising the discretion, given to a presiding judge, who
is tasked with making a ruling as to whether or not a strike
out
should be granted, in terms of Rule 6(15)of the Uniform Rules of
Court, said the following:
“
Is the additional
evidence scandalous, vexatious or irrelevant? Two requirements must
be met before a striking out application can
succeed: (i) the matter
sought to be struck out must be scandalous, vexatious or irrelevant;
and (ii) the court must be satisfied
that if such a matter is not
struck out the party seeking such relief would be prejudiced.”
[7]
(Footnote ommited.)
[7]
The above
dicta
are summarised as follows: (a) It is not a strict rule that an
application to strike out must be delivered in the form of a notice
accompanied by an affidavit. A notice alone may suffice depending on
the circumstances of the case and the nature of the application
before such presiding officer; (b) A party objecting to the submittal
to the averment in an affidavit and or affidavit has to show
that
such submittal would be prejudicial to him because it is scandalous,
vexatious or irrelevant.
[8]
Taking into account that, the applicant has approached this Court on
an urgent basis and that the application to strike out
is not in the
form of “a notice” , but raised in the replying
affidavit. I have noted that Rule 6(15) does not define
the word
notice, but states as to what should be contained in such notice
therefore,I opine that the applicant cannot be faulted
for not
delivering a separate notice stating the grounds upon which he relies
, as this might have delayed this urgent application.
The respondents delivered
confirmatory affidavits after being notified of the concerns raised.
However, the concerns about this
notice were that the applicant’s
basis for the strike out is that the deponent to the answering
affidavit has “lack
of personal knowledge” of what is
contained in the answering affidavit. Taking into account that the
applicant is not specific
as to which points in the affidavit are
scandalous, vexatious and/or irrelevant, results in the failure of
the objection to meet
the requirements of a strike out as per the
Helen
Suzman
dictum.
[9]
Further, the applicant does not indicate as to how he will be
prejudiced by the submittal of the affidavit, taking into account
that most averments are common cause and the applicant had an
opportunity to deliver the replying affidavit without identifying
which paragraphs he does not agree with.
Moreover,
that
deponent
to the answering affidavit is acting in the representative capacity.
Therefore, in the circumstances, the application to
strike out fails.
Relevant
Background
[10]
The
applicant
is an admitted attorney, with two law degrees. In 2001 he was
appointed as Legal Administration Officer at Mogale City,
and between
2004 to 2007 he worked as a Legal Service Manager at Bitou
Municipality. In December 2007 he joined Western Area Municipality
as
an Executive Director in Corporate Support Services. In December 2013
he joined the employer as its Chief Operations Officer
until 2014,
when he was appointed in the capacity of an Acting Municipal
Manager.
[8]
With this
résumé
, it is clear that the applicant is well acquainted with the law,
[9]
unlike an uneducated person who, upon receiving a notice of intention
to suspend, might not know what to do and understand the
background
of such notice. Even if that notice is not properly drafted and/or
detailed. Further, looking at the founding affidavit
in this matter,
it is clear that the applicant knew very well as to what the
allegations were against him.
[11]
Amongst other things, the pleadings show the following regarding the
allegations against the applicant, and I must mention
that his
affidavit is detailed specifically about the following:
1.1
Rooipoort
Landfill Site’s allegation
:
the Gauteng Department of Agriculture and Rural Development (GDARD)
issued an environmental audit report indicating, among other
things,
that it previously audited this site, and there was no proper
compliance with the relevant legislation. This audit blames
the poor
management of the site. The consequences thereof could result to the
closure of the site or a fine payable by the employer
not exceeding
10 million Rand. This site falls within the jurisdiction of the
employer, and in terms of the provisions, section
62, of the Local
Government Municipal Finance Act 56 of 2013, the applicant as
accounting officer was responsible for this. Meaning,
it was his
responsibility to make sure that whoever that was involved in this
project on behalf of the Council was doing the right
job.
Following this
misfortune, the members of the portfolio committee visited the
project for inspection.
1.2
Under the
heading “Rooipoort Landfill Site”, he states the
following:
“
88. Around May
2016, I was visited by the Third Respondent who was in the
company of some councilors notably including, councilor,
Lephuting
[13
th
Respondent
]
who is an MMC for the Integrated Environmental Management portfolio.
In that meeting the Third Respondent confronted me together
with
Lephuthing that they have been informed by Mantjane
that
I have appointed a service provider which I have a personal interest
on and was does not have capacity to operate and maintain
the
landfill site
.
I responded that I have no interest in the service provider, other
than ensuring that we comply, to the extent agreed upon with
GDARD,
the landfill site’s license conditions seeing that failure to
do so carries with it punishment in my personal capacity.
I further
informed them that I have never met the Service Provider personally
before. It is now occuring to me that the very same
meeting was the
beginning of the process which the First Rspondent and Third to Fifty
fifth Respondents have now embarked upon
to get rid of me”
[10]
1.3
The
applicant confirms that the accusations mentioned in the preceding
paragraph took place after the GDARD head conducted the audit
at the
site.
[11]
He indicates the
steps that he took, by interacting with the parties within the
relevant Municipality’s department, after
being made aware of
the GDARD’s report.
[12]
1.4
The notice
of intention to suspend, calling upon him to give reasons why he
should not be suspended pending the finalisation of
the investigation
in respect of the Rooipoort Landfill Site issue, which letter also
indicates that it is a serious allegation
against him, and the
Council was concerned that he might interfere with, among others,
potential witnesses.
[13]
1.5
To show
that the applicant knew about the Rooipoort Landfill Site, long
before he could even receive a letter of suspension, on
21 April
2017,in his founding affidavit he says:
“
On 4 April 2017,
there was media announcement which reached the
Carltonville
Herald
titled “Lack of management places Rooipoort Landfill Site at
Risk”, wherein it was alleged that more than 50 % of the
budgeted R10,000.000. 00 had been spent with no improvement of the
site. In the article or media announcement, a copy of
which is
annexed marked “
LRT15
”,
the impression is created that I have been acting corruptly,
mismanaging the funds of the First Respondent and that
I have
been abusing my position”.
The
applicant with this information, after being advised of the intention
to suspend him a day before – as an attorney –should
have
known that the allegations against him were that of
maladministration.
In
light of what has been stated under this paragraph, a simple question
that begs for an answer is: why did the applicant not respond
to the
allegations and state why he should not be suspended?
[14]
Also taking into account that the applicant, in his founding
affidavit in this Court, detailed what he knows about the issue of
the Rooipoort Landfill Site. Therefore, to now say that there was no
reasonable cause; on the part of the Council to suspect allegations
of misconduct, to me it amounts to a thinly veiled defence.
[12]
A special Council meeting was held on 30 March 2017 and based on the
information at the Municipality’s disposal it formed
a view
that there is some misconduct in respect of, among others, the
applicant. That then resulted to the opinion that there was
a
reasonable cause to take disciplinary measures against the applicant,
because it was made to believe that he had committed financial
misconduct.
[15]
[13]
On 3 April
2017, the applicant was issued with a letter by the first respondent
informing him of the resolution of intention to
suspend him. In terms
of this letter the applicant was given seven days to indicate as to
why he should not be suspended and some
of the things that are raised
in that letter are the following:
“
A progress report
was presented to the Section 80 meeting of Integrated Environmental
Management on 29 March 2017. The annexures
of the progress report
included the Environmental Audit Report for the Rooipoort Landfill
Site (10 February 2017) by GDARD.. In
the contents of the Audit
Report, GDARDremarked 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 MCLM to address
some of the partial l
compliance issues identified in the previous audit
”
[16]
This
letter was received by the applicant on 3 April 2017 and he was
expected to give reasons by no later than 10 April 2017 as
to why he
should not be suspended.
[14]
On 10 April
2017, the applicant sent a letter requesting further information to
enable him to properly respond to the allegations.
He then
transmitted a letter to the municipal mayor which partly reads thus:
“
In
light of your intended action which appears to be drastic under the
circumstances, I would be pleased to be furnished certain
information
and /or documents prior to me exercising my right to respond as it is
accorded to me in line with the rules of natural
justice.
”
[17]
Two days later, the Municipality responded to this request. According
to the response it is clear that he was provided with the
information
that he needed. The applicant sent another letter to the Municipality
requesting further details and according
to this correspondence
he mentions, among other things, that the Municipality was embarking
on a witch-hunt
.
I have perused the letter concerned. According to me, there is
nothing that suggests any motive and/or witch hunt on the part of
the
respondents. Still the applicant failed to respond to the letter
which requested him to provide reasons why he should not be
suspended.
[15]
On 19 April
2017, the applicant sent another letter to the Municipality wherein
he, inter alia, stated the the following: “
the
requested transcripts are requested to assist me in understanding how
council arrived at its decision to intended to suspend
me”
and
further mentioned a statement in his request for the transcript
records of three meetings that were held by different committees.
Furthermore, he stated
that:
“
With reference to
Item 23/2017, in particular, paragraph 3 thereof where it is stated
that you requested my intervention on the
concern raised by Mr
Mantjane around May 2016. How did you make such a request and
when
in May 2016
to be specific I note that you have not provided the response hereto
to enable me to be able to answer.”
He
further asked the question: “
when did you become aware or
realise my failure to report to you as you requested”.
Jurisdiction
of this Court
[16]
The
applicant approached this Court for a declaratory order to declare
his suspension unlawful, as per prayer 2 of the notice of
motion. I
could only find section 158(1)(a)(iv) of the LRA which gives
this Court the power to make a declaratory order.
[18]
I have taken into account that, in the
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell,
[19]
the LAC indicated the following in respect of a party who is
approaching this Court on an urgent basis relying on this section:
“
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of section 191(1) of the
LRA. The respondent in this case instead sought a declaratory
order
from the Labour Court in terms of section 158(1)(a)(iv) of the LRA to
the effect that the suspension was unfair, unlawful
and
unconstitutional. A declaratory order will normally be regarded as
inappropriate where the applicant has access to alternative
remedies,
such as those available under the unfair labour practice
jurisdiction. The final declaration of unlawfulness on the grounds
of
unfairness will rarely be easy or prudent in motion proceedings. The
determination of unfairness of a suspension will usually
be better
accomplished in arbitration proceedings, except perhaps in
extraordinary or compellingly urgent circumstances. When the
suspension carries with it a reasonable apprehension of irreparable
harm, then, more often than not, the appropriate remedy for
an
applicant will be to seek an order granting urgent interim relief
pending the outcome of unfair labour practice proceedings”.
[20]
[17]
In
casu
,
the applicant has not approached either the CCMA or the Bargaining
Council for an unfair suspension dispute, he opted to approach
this
Court directly; despite those processes being available for him to
utilise in terms of the provisions of section 191 of the
LRA which
relates to unfair labour practice based on suspension. Considering
that the applicant asks this Court to declare his
suspension by the
Council to be unlawful, in the provisions of the LRA, I do not think
the LRA allows for this because it deals
with fairness of suspension.
Taking into account, that in the same judgment the LAC, in paragraph
47, says “
I
am, therefore, of the view that the judge a quo ought not to have
exercised his discretion to grant the declaratory
.
I doubt also whether he had the legal competency to do so.
”
(Emphasis added.)
[18]
Recently
the Constitutional Court had to deal with the matter whereby parties
had approached the Court asking it to declare their
dismissal
unlawful, in accordance with the provisions of the LRA. The
Constitutional Court held that it could not have been the
intention
of the legislature that a dismissal could be declared unlawful,
instead of fairness.
[21]
I,
therefore, conclude that relying on the provisions of the LRA, asking
the Court to declare a suspension unlawful is misplaced
under these
circumstances.
[19]
However, in
respect of prayer 3 of the notice of motion, taking into account the
averments in paragraph 120 to 126 of the founding
affidavit it is
clear that the applicant is asking this Court to set aside the
decision of the Municipality, which this Court ,
in terms of section
158(1)(h) of of the LRA it has powers to do so, as the
Municipality is part of the state.
Under
those circumstances, this Court may have the power to do so. As it
would be detailed below, I am of the view that no proper
case has
been made in support of this prayer.
[20]
If I am
wrong in the above, paragraphs 17 and 19 above, taking into account
that the LAC
[22]
has
held thus:
“
It
is now the trite that the
jurisdiction of the Labour Court to resolve the dispute is determined
from pleadings. But the pleadings
cannot be taken at face value. They
need to be properly construed to ascertain what legal basis of the
applicant’s claim
is. ”.
[23]
(Footnotes omitted.)
As
set out below, I will still not agree with the applicant that he has
made out a case which requires this Court to interfere with
the
decision of the Municipality.
Urgency
[21]
On 21 April
2017, the applicant was suspended by the respondent. Following
his suspension the respondent did not immediately
approach this
Court. He only delivered this application on 12 May 2017 – 20
days after his suspension. The question that
has to be answered is
whether the urgency is self-created.
[22]
Molahlehi
J, in the matter of
Mojaki
[24]
in respect of urgency, refers, with approval, to the
East
Rock Trading
matter in the following:
“
The import thereof
is that the procedure set out in rule 6(12) is not there for taking.
An applicant has to set forth explicitly
the circumstances which he
avers render the matter urgent. More importantly, the Applicant must
state the reasons why he claims
that he cannot be afforded
substantial redress at a hearing in due course. The question of
whether a matter is sufficiently urgent
to be enrolled and heard as
an urgent application is underpinned by the issue of absence of
substantial redress in an application
in due course. The rules allow
the Court to come to the assistance of a litigant because if the
latter were to wait for the normal
course laid down by the rules it
will not obtain substantial redress.
It is important to note
that the rules require absence of substantial redress. This is not
equivalent to the irreparable harm that
is required before the
granting of an interim relief. It is something less. He may still
obtain redress in an application in due
course but it may not be
substantial. Whether an applicant will not be able to obtain
substantial redress in an application in
due course will be
determined by the facts of each case. An applicant must make out his
case in that regard.”
[23]
The
respondents argued that since the application was filed 20 days
later, the applicant has not shown any extraordinary or compelling
circumstances that an urgent should be granted. I have taken into
account that the applicant in the founding affidavit states clearly
that his contract is about to expire on 31 May 2017, if the
applicant did not approach this Court, but decided to approach
the
Bargaining Council with an unfair labour practice dispute, I am
of the view that by this datehis matter could not
have been
resolved . Therefore, the only option that was available to him is
this Court, under those circumstances, the matter
urgent.
A
Clear Right
[24]
Taking into
consideration the affidavits, one concludes that the issue is about
regulations,
[25]
where the
relevant provisions read thus:
“
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.”
[25]
As the
applicant’s affidavit in paragraph 127 to 134 alleges that
there was no basis for his suspension and the Municipality
failed to
hear his representation. This is surprising because he was given an
opportunity to make representation, but he failed
to do that.
Instead, he claimed that the allegations against him were not clear
in the notice of intention to suspend. However,
taking into account
that according to his admission the charges relate to corruption and
or allegations of misconduct emanated
from Rooipoort Landfill Site.
Moreover, this confirms that he was made aware of this back in
May 2016. It is clear that these
are serious allegations and by
saying the Committee did not decide on the seriousness has no basis.
[26]
The
applicant acknowledges that the allegations against him are of
corruption, which obviously emanate from the project however
he is
saying his presence at the employer’s premises will not
jeopardise any investigation or endanger any well-being or
safety of
any person, this is stated in paragraph 128. I do not agree with this
statement of the applicant, taking into account
that the applicant
was given an opportunity to make representations he should have
stated all of this during the representation,
but he decided, instead
to make “a representation” to this Court. This kind of
approach cannot be encouraged.
[27]
Based on
the above, I am of the view that the applicant has failed to present
a convincing case, therefore, this application should
be dismissed.
The
costs
[28]
According
to paragraph 88 of the
founding affidavit, he avers that the municipal manager and other
respondents were aware of the allegations
of corruption against him
back in May 2016 however they waited until March 2017 to take
action against the applicant given
that his last day of employment
was to be 31 May 2017. It leaves much to be desired as to how, the
Municipality was expecting that
the disciplinary process will be
finalised within two months, as these are serious allegations which
required more time. There
is no evidence as to whether he would be
working after 31 May 2017 or not, therefore, it would not
be in the
interest of justice to make a costs order against him.
Order
[29]
In the
circumstances, the following order is made:
1.
The
Application is heard as one of urgent as provided for in terms of
Rule 8, and the Applicant’s failure to comply with the
normal
time period, forms and service as provided for in the Rules of this
Court is condoned.
2.
The
application to strike out is dismissed.
3.
The
applicant’s case is dismissed.
4.
There is no
order as to costs.
_____________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Mr Moretlwe
Instructed
by:Ramolao Ramotsehoa Attorneys
For
the Respondent:Mr Moosam
Instructed
by: De Swardt Vogel Myambo Attorneys
[1]
75 of 1997. Section 77(3)
provides:
“
The Labour Court has
concurrent jurisdiction with the civil courts to hear and determine
any matter concerning a contract of employment,
irrespective of
whether any basic condition of employment constitutes a term of that
contract.”
[2]
66 of 1995, as
amended. (LRA)
[3]
Paragraphs 135 and 142.
[4]
The parties complied with this order
on 25 May 2017.
[5]
Public Servants Association of
South Africa v Minister of Department of Home Affairs and Others
[2012] ZALAC 35
;
[2013] 3 BLLR 237
(LAC). (
PSA
)
[6]
Helen Suzman Foundation v
President of the Republic of South Africa and Others; Glenister v
President of the Republic of South
Africa and Others
[2014] ZACC 32
;
2015 (1) BCLR 1
(CC);
2015 (2) SA 1
(CC).
(
Helen Suzman Foundation
)
[7]
Id at para 12.
[8]
Para 147 to 149.
[9]
Page 45, paragraph 131.
[10]
Page 34, paras 88, 89-98,101,108,125
[11]
Page 32, para 81.
[12]
Page 33 to 37, paras 82 to 100.
[13]
Page 400.
[14]
Page 44, para 129.1.
[15]
Answering affidavit at para 27.
[16]
Page 401,41.
[17]
Page 412.
[18]
Section 158(1)(a)(iv) of the LRA
provides:
“
(1) The Labour Court may—
(a)
make any appropriate order,
including—
. . .
(iv) a declaratory order.”
[19]
[2012] 8 BLLR 747 (LAC).
[20]
Id at para 46.
[21]
Steenkamp and Others v Edcon
Limited
[2016] ZACC 1
;
(2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335
(CC); 2016 (3) SA 251 (CC).
[22]
Member of the Executive Council of
the Western Cape Provincial Government Health Department v Coetzee
and Others
[2015] 11 BLLR
1108
(LAC)
.
[23]
Id at para 89.
[24]
Mojaki v Ngaka Modiri Molema
District Municipality and Others
[2014] ZALCJHB 433; (2015) 36 ILJ 1331 (LC) at para 17.
[25]
Local Government Disciplinary
Regulations for Senior Managers, 2010.