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[2018] ZALCJHB 445
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Lefatola and Another v City of Johannesburg and Another (J1752/18) [2018] ZALCJHB 445 (6 June 2018)
the
labour court of South Africa,
held
at johannesburg
case no: j 1752/18
In
the matter between:
BLAKE
LEFATOLA
First
Applicant
TOIVO
MOHAPI
Second
Applicant
and
CITY
OF JOHANNESBURG
First
Respondent
JACK
ZEBEDIA
N.O.
Second
Respondent
Heard
:
24 May 2018
Delivered
:
06 June 2018
Summary:
(Urgent – intervention in incomplete joint disciplinary
proceedings – ruling that enquiry be
conducted on written
submissions of parties – one employee contractually entitled to
lead oral evidence – no evidence
in any form yet led in enquiry
– clear breach of contract of employment – circumstances
warranting order of specific
compliance - review of ruling –
record of application not provided – inappropriate to review
ruling on an urgent
basis – urgency satisfied as applicants
acted promptly when ruling was handed down and it would have been
premature to approach
court before ruling made )
judgment
LAGRANGE
J
Background
[1]
This is an application for final, or alternatively interim, relief
brought on an urgent
basis. It was launched on 21 May and is set down
for a hearing on 24 May 2018. The applicants Mr B Lefatola
(‘Lefatola’)
Ms T Mohapi (‘Mohapi) are respectively
employed as Group Head: Group Strategy, Policy Coordination &
Relations and as
Unit Head: Integrated and Community-Based Planning
by the first respondent, the city of Johannesburg. Lefatola is
employed on a
fixed term contract in terms of section 56 of the
Municipal Systems Act 32 of 2000 (‘the MSA’) and reports
directly
to the Municipal Manager. Mohapi reports to Lefatola, and is
not employed in terms of section 56 of the MSA.
[2]
The applicants seek final relief in the form of an order in the
following terms:
2.1
interdicting the disciplinary proceedings against them from
proceeding by way of motion;
2.2
reviewing and setting aside the second respondent’s ruling of
16 May 2018;
2.3
directing the second respondent to conduct the disciplinary
proceedings against them in the form
of an oral hearing.
In the alternative, the
applicants ask that an interim interdict preventing the proceedings
from proceeding by way of motion granted
pending a final
determination of the relief mentioned in paragraphs 2.1 to 2.3 above.
Brief chronology
[3]
On 3 October 2017 Mohapi was placed on precautionary suspension by
the City Manager of the
first respondent, the City of Johannesburg
Metropolitan Municipality (‘the COJ’). On 19 October
2017, following a Council
resolution, Lefatola was also placed on
precautionary suspension by the City Manager of the first respondent,
the City of Johannesburg
Metropolitan Municipality (‘the COJ’)
[4]
An investigation commissioned by the COJ into allegations of
misconduct against Lefatola
concluded that there was sufficient
evidence against him which revealed serious misconduct on his part,
of the kind described in
Annexure A to the Disciplinary Regulations
for Senior Managers. The report was compiled after interviewing the
City Manager and
other senior employees working in or with the
executive mayor’s office. The investigation report dated 6
November 2017 recommended
the institution of disciplinary proceedings
against Lefatola. Both the applicants were presented with notices to
attend disciplinary
hearings on 20 December 2017.
[5]
The notices of the disciplinary enquiry, as amended, called on both
applicants to answer
12 charges of gross misconduct. Notices of
amended charges appear to have been given to the applicants twice.
For the purposes
of this application it is not necessary to go into
the details of the alleged misconduct, save to state that the alleged
misconduct
concerns the preparation and finalising of the COJ’s
Integrated Development Plan. In essence, the applicants are accused
of negligently or wilfully hampering the preparation of a draft IDP
and its finalisation, and of not cooperating or wilfully obstructing
the efforts of the Executive Mayor and staff in the Private Office of
the Executive Mayor (‘POEM’) to finalise it.
The charges
referred to specific instances of the alleged failure to perform
specific duties or instructions, or of a course of
conduct which
undermined the preparation of the plan. Six of the charges narrow
down the alleged misconduct to a specific date
or confine the charge
to a period of a week or less. Other charges canvass periods ranging
from 3 to 7 months.
[6]
In the notices of the enquiry issued to both applicants, they were
advised of the procedures
applicable to the enquiry. Procedural
aspects of the enquiry were itemised in the notices, and their
attention was specifically
drawn to the provisions. Pertinent
provisions in Lefatola’s notice stated:
2.1 You have the right to
be represented by a fellow employee or any other suitably qualified
person, provided that any costs incurred
will be borne by you.
2.2 If you or your
representative should fail to attend the hearing that the scheduled
time and venue, the hearing may proceed
in your absence.
2.3 You will be required
to plead to the charges set out against you in the charge sheet.
2.4 The municipality will
call witnesses and adduce evidence, orally or by way of documents,
and you or your representative will
have the right to cross-examine
the witnesses called on behalf of the municipality, subject to the
rights of any such witnesses.
2.5 You have the right to
present a case and call witnesses and adduce evidence, orally or by
way of documents.
2.6 The proceedings will
be conducted in English, and should you require an interpreter, you
must inform the prosecutor in writing
there of with 5 days of receipt
thereof.
2.7 Your attention is
specifically drawn to the fact that the municipal council has
appointed Salijee Govender Van der Merwe Inc
all it designated a
pointy to act as the evidence leader and Advocate Eric Nwedo to act
as the presiding officer in the hearing.
2.8 Any request for
further particulars or access to documentation or copies thereof must
be directed to the person leading evidence,
in writing within seven
days of the date of receipt of the charge sheet.
2.9 Any request for a
postponement must be directed to the person you evidence, in writing,
forthwith but not live later than 7
days after the date of receipt of
the charge sheet.
2.10 Your attention is
drawn to the provisions of the Labour relations act, 1995 (act number
66 of 1995) as well is the Code of
Conduct contained in Schedule 2 to
the Local Government: Municipal Systems act, 2000 (act number 32 of
2000) which provisions will,
where applicable apply to the hearing.
[7]
Mohapi’s notice contained slightly different provisions. I will
only mention the most
relevant ones here, viz:
1. You have the right to
be represented by a fellow employee or shop steward.
2. If you or your
representative should fail to attend the hearing that the scheduled
time and venue, the hearing may proceed
in your absence or in the
absence of your representative.
3. You may call witnesses
to testify on your behalf and you will be granted opportunity to
cross-examine the witnesses called by
the city.
4. The proceedings will
be conducted in English, and should you require an interpreter, you
must inform Mr Mathews Lengwasa
… in writing thereof 5
days before the hearing.
5. Your attention
is drawn to the provisions of the Labour relations act, 1995 (act
number 66 of 1995) as well as Schedule
8 thereto - code of good
practice: dismissal, which provisions will apply, where applicable,
to the hearing.
Mohapi’s
notice also contained details of the presiding officer and the
prosecutor.
[8]
The applicants further claim that when the enquiry first convened on
20 December 2017, it
was agreed amongst other things that “the
(oral) hearing” would commence on 5 February 2018 and that the
applicants
could be legally represented. They claim that this
constituted a further agreement on the conduct of the hearing. The
respondent
denies that the arrangements made on 20 December included
an agreement that the hearing would be conducted orally.
[9]
When the enquiry resumed on 5 February 2018, Mohapi applied for a
ruling that the COJ should
contribute towards her legal costs.
Lefatola was granted a postponement because his legal representative
was not present and he
‘wanted time to consider whether he
should apply to join’ Mohapi’s application for a
contribution to costs to
be made by the COJ. The net result of this
interlocutory process meant that a further six days that had been
scheduled for the
enquiry in February were lost.
[10]
A further application was brought by Lefatola in which he challenged
the validity of the resolution to institute
disciplinary proceedings.
It appears that the chairperson rightly accepted that he had no
jurisdiction to consider that application.
Nonetheless, hearing that
application appears to have consumed another three days of the
hearing in February and March 2018.
[11]
On 13 February, the CEO applied for a ruling that the hearing which
was due to resume on 20 February should
proceed in the form of
application proceedings based on affidavits, without recourse to oral
evidence and that any disputes of
fact could be determined in
accordance with the conventional rules governing the resolution of
such disputes on paper in motion
proceedings. The application
also sought that argument would be conducted by way of written
submissions.
[12]
On 16 May 2018, the chairperson agreed that it was not necessary for
the proceedings to be conducted by way
of leading oral evidence and
ruled that the hearing would proceed by way of written submissions.
He then ruled that the employer
would make its submissions by 18 May
2018 and employees would make theirs by 25 May 2018. It is not
entirely clear whether his
ruling on ‘written submissions’
was intended to encompass evidence on affidavit or not.
[13]
In arriving at his decision, he appears to have been influenced
inter
alia
by case authority that has acknowledged that the hearing may
be conducted by way of written submissions in the interests of
expediting
proceedings especially in circumstances of delay such as
in the current enquiry. He noted that the employer would essentially
stand
or fall by its written submissions and the applicants’
right to be heard would be satisfied by the opportunity to make their
own written submissions. He was of the view that this was compatible
both with the conduct of disciplinary enquiries with the minimum
of
legal formalities as contemplated in Schedule 8 of the LRA and the
Senior Management Regulations.
Urgency
[14]
The applicants would have approached the court prematurely without
waiting for the chairperson’s ruling
on the conduct of the
proceedings. The mere fact that it became an issue when the COJ made
the application would not have warranted
approaching the court then.
[15]
In so far
as it is not appropriate for the court to intervene in incomplete
enquiries except in exceptional circumstances
[1]
,
I am satisfied that the removal of Lefatola’s clear contractual
right to choose how he wishes to conduct his defence in
terms of the
applicable regulations amounts to a clear breach of contract, for the
reasons set out below. It is also easily remedied
at this point in
the proceedings when no evidence in any form has yet been led.
[16]
This also
points to the lack of a meaningful alternative remedy to address the
contractual breach as it is a process right fundamentally
affecting
his scope for conducting his defence. It is not an incidental or
insignificant issue in the conduct of the inquiry. The
existence of
the contractual right does make it possible for a contractual remedy
for specific performance to be sought at the
time of the breach. In
terms of s 77A (e) of the Basic Conditions of Employment Act, 75 of
1997 (‘the BCEA’), the Court
has the power to order
specific performance.
[2]
However, that does not mean all such breaches, even if proven
will warrant the exercise of the court’s discretion to
order
specific performance.
Review of the ruling
[17]
The grounds of review of the chairperson’s ruling on conducting
the proceedings by way of written ‘submissions’
are
thinly pleaded. Moreover, only his ruling was provided for the court
to consider. No record of the proceedings in the form
of the parties’
various affidavits in that application are provided. On the material
available, the court is not in a position
to review the ruling in
these proceedings. However, given the fact that the order for
specific performance will inevitably conflict
with the commissioner’s
ruling, it is necessary to suspend it pending any future review of
the ruling, though it will probably
be moot by the time such an
application is heard in due course.
[18]
In passing, I must stress that the order made in this matter does not
in any way try to suggest, as a matter
of principle, that
disciplinary proceedings must entail the leading of oral evidence.
Provided the accused employee has an opportunity
to present their
response to the employer’s case, in a format equivalent to that
of the employer there is no reason why evidence
on affidavit would
not satisfy the need to give the employee a sufficient opportunity to
respond, in the absence of other complicating
considerations like the
contractual issue in this application or a situation in which poor
levels of literacy may materially hamper
an employee’s ability
to deal with evidence in writing.
[19]
What that leaves is the applicants’ claim that they are
entitled to an oral hearing in terms of a contractual
agreement.
Existence of a clear
contractual right to a hearing?’
Did a contract
enforceable by this court arise from the issuing of the notices of
the enquiry and, or alternatively, the first day
of the enquiry?
[20]
The first basis on which the applicants contend they have a
contractual right to an oral hearing is based
on the entitlements set
out in the notices of the disciplinary enquiry constituted an
agreement between them and the COJ , which
the employer is attempting
to resile from. The COJ accepts that it originally contemplated and
instituted an oral hearing but by
issuing the notices contemplating
such a procedure, it did not conclude any agreement with the
applicants on the format of the
hearing.
[21]
In the course of considering this contractual ground, it came to my
attention that nowhere in the pleadings
is it stated that this
purported agreement formed part of the applicant’s employment
contracts. It is pleaded as a self-standing
agreement, but is not
directly or indirectly linked by them to their contracts of
employment. The same goes for their supplementary
claim that this
agreement was ‘re-enforced’, or alternatively, a fresh
agreement was reached to conduct an oral enquiry
when the enquiry
first convened on 20 December 2017. I am not sure that an arrangement
struck in the course of a disciplinary enquiry
necessarily concerns
the applicants’ employment contracts. Quite apart from
that, the conclusion of a distinct agreement
that the subsequent
proceedings would be conduct as oral proceedings is poorly
substantiated in the founding affidavit and denied
in the answering
affidavit. The applicants did not file a replying affidavit, so the
respondent’s version would have to be
preferred if it had to be
determined.
[22]
As the founding affidavits stand, I am of the view that the
applicants have not laid the necessary factual
jurisdictional basis
why the Labour Court would be entitled to adjudicate on this
particular alleged agreement under its powers
to deal with
contractual matters. The court’s power to determine contractual
disputes is confined to what is set out in the
s 77(3) of the BCEA.
That section states:
(3)
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.
(emphasis
added)
[23]
In the absence of any allegation of how this agreement concerns their
contracts of employment as such, this
contractual claim cannot be
entertained. At the very least this should have been set out in the
affidavit. Merely because it
could have been
part of their
contracts of employment and arose in an employment relationship
context is not enough. As it stands, it was
pleaded as a
self-standing agreement, quite independently of the claim based
directly on their contracts of employment, which is
discussed below.
The
applicant’s contracts of employment and their rights to an oral
hearing
[24]
Turning to
their claim to be entitled to an oral hearing based directly on their
employment contracts, Lefatola contends that in
terms of clause 20 of
his employment contract, the Disciplinary Procedure for Senior
Managers is incorporated into his terms and
conditions of employment.
He further contends that clause 20.5.2.3 of his contract provides, in
respect of serious misconduct,
that regulations 8 to 12 of the Local
Government: Disciplinary Regulations for Senior Managers, 2010
[3]
are applicable. Although a copy of the contract should have been
attached, the COJ does not dispute these contentions but maintains
that they only require it to give Lefatola a hearing but that hearing
does not have to be an oral one.
[25]
The notice issued to Lefatola conforms with the provisions of
Regulation 8 which state inter alia that:
8.
Serious misconduct
(1) The officer leading
evidence who has been appointed in terms of sub-regulation 5(7)(b) -
(a) must, within 30 days
of his or her appointment, formulate and serve charges of the alleged
misconduct in a format compliant
with Annexure D; and
(b) may summons any
witness to appear before the disciplinary hearing in a format
substantially compliant with Annexure E.
(2) The charge sheet
contemplated in sub-regulation (1) must inform the senior manager of
-
(a) the alleged act or
acts of misconduct;
(b) the time, date and
venue at which the hearing will be conducted;
(c) the name of the
presiding officer and the officer leading evidence;
(d) the address at which
notices and correspondence may be served on such officer;
(e) the right to appoint
a representative of his or her choice, who may be a fellow staff
member, shop steward, union official or
any other suitably qualified
person;
(f) the right to request
further particulars or access to documentation or copies thereof from
the officer leading evidence, in
writing, within seven [7] days of
receipt of the charge sheet;
(g) the right to an
interpreter, whose presence must be requested by notice in writing,
addressed to the officer leading evidence
within seven [7] days of
receipt of the charge sheet;
(h) the right to call
witnesses to testify on his or her behalf;
(i) the fact that
any request for a postponement should be directed to the officer
leading evidence in writing not later than
seven [7] days after
receipt of the charge sheet; and
(j) the fact that
the enquiry may be conducted in his or her absence if the senior
manager or his or her representative fails
to attend the hearing,
which includes the making of a finding and the possible imposition of
a suitable sanction.
[26]
Regulation 10 sets out the procedure for the conduct of a
disciplinary enquiry and provides:
10.
Conducting disciplinary hearing
(1) The disciplinary
hearing must commence -
(a) within three months
of the resolution to institute disciplinary action; and
(b) on a date not less
than seven [7] days and not more than ten (10) days from the date of
service of the charge sheet and the
written notice of the
disciplinary hearing on the senior manager.
(2) The hearing must be
conducted by the presiding officer
who may determine the
procedures to be followed
,
provided that
the -
(a)
rules of natural
justice are adhered to at all times
;
(b)
matter is speedily
resolved with the minimum of legal formalities
;
(c) presiding officer in
discharging his or her obligations -
(i) exercises care,
diligence and acts impartially; and
(ii) does not consult or
confer with any of the parties or their representatives on the merits
or demerits of the case.
(3)
The officer
leading evidence
-
(a) must commence the
disciplinary hearing by reading out the charges to the senior
manager;
(b)
may
call
witnesses and produce book[s], documents] or object(s
);
(c) may cross-examine any
witness called to testify on behalf of the senior manager;
(d) may inspect any
book[s], documents] or object[s] produced by the senior manager; and
(e) must present
arguments on the merits of the case.
(4) The senior manager
has the right to
-
(a) be heard in person or
through a representative;
(b)
call witnesses
and produce book[s], documents] or object[s];
(c)
cross-examine any
witness called to testify
by the officer leading evidence; and
(d) inspect any book[s],
documents] or object[s] produced by the officer leading evidence.
(emphasis added)
[27]
Having regard to the above, I am satisfied that Lefatola has a
contractual right by virtue of the regulations
above, which are
specifically incorporated into his contract of employment to an oral
hearing in the sense that he is clearly contractually
entitled to
exercise those rights set out in Regulation 10 (4) including his
right to call witnesses in terms of regulation 10(4)(c)
and to
cross-examine witnesses called by the COJ. Thus, as the regulations
stand, he cannot be confined to present his evidence
on affidavit or
in the form of submissions. However, it is important to note that
Regulations 10(3) and 10(4) do nothing more than
determine the
different ways that each party is entitled to present their
respective cases. Thus, if one party chooses to
present its
case primarily using documents such as affidavits, it may do so.
A party will assume the risks of the methods
of producing evidence it
chooses under those provisions. The methods it adopts do not oblige
the other party to mirror its approach.
It is up to the
presiding officer to weigh up the value of the different forms of
evidence adduced. For this reason, rather than
referring to an ‘oral
hearing’ being a contractual entitlement, the relief granted
must be confined to the contractual
entitlements set out in the
regulations.
[28]
Strictly speaking, Mohapi, who is not employed under section 56 of
the MSA, is compelled to rely on the more
limited basis of an alleged
contract concluded when the notices were issued, which was renewed or
agreed upon anew at the enquiry
on 20 December 2017. For the
reasons mentioned above, those alleged agreements cannot be
entertained. As such, the employer
does not necessarily have to
conduct her enquiry in conformity with the regulations, though for
practical purposes it appears to
have decided to conduct a joint
enquiry and not to treat her less favourably than Lefatola in the
conduct of the proceedings. As
a matter of law though her
entitlements are not the same.
Can applicants’
rely on general contractual principles?
[29]
Lastly, the
applicants contend that an employment contract must be interpreted to
include fairness and the SCA has held that employees
are
contractually entitled to a pre-dismissal hearing. In
SA
Maritime Safety Authority v McKenzie
[4]
the SCA held that there is
no implied right in contract not to be unfairly dismissed in respect
of employees to whom the
Labour Relations Act, 66 of 1995
applies. By
necessary implication, this also means a dismissal which is
procedurally unfair does not necessarily imply a breach
of contract.
Conclusion
[30]
Although I am not satisfied the presiding officer’s ruling, as
such, can be set aside in these proceedings,
Lefatola nonetheless has
a right to an oral hearing to the extent set out in
Regulation 10(4)
above. Mohapi has not established a clear, or
prima facie
right to a particular form of hearing based on her contract of
employment or otherwise. Nevertheless, as Mohapi and Lefatola’s
hearings are being conducted jointly it will probably make little
practical sense to differentiate between them in the conduct
of their
defence in the enquiry. As a matter of law, the relief granted,
strictly speaking is confined to Lefatola’s entitlements.
[31]
However, as mentioned above, the practical consequence of this
outcome is that the chairperson cannot give
effect to his ruling by
requiring
the hearing to be conducted by way of written
submissions, even though the parties would still be free to determine
how they wished
to present their cases within the confines of
Regulations 10(3)
and
10
(4). Consequently, it is necessary to suspend
the effect of the ruling, pending any subsequent review.
Costs
[32]
I am disinclined to order costs, as the applicants’ success is
limited and the parties are still locked
in an employment
relationship.
Order
[1]
The application is dealt with as an urgent application in terms of
Rule 8 of the Labour
Court Rules and any non-compliance with the
rules relating to form, service and time periods is condoned.
[2]
The first applicant is entitled to exercise his contractual rights in
terms of Regulation
10(4) of the Local Government: Disciplinary
Regulations for Senior Managers, 2010, and cannot be required to
conduct his defence
in the form of written submissions.
[3]
The second respondent’s ruling of 16 May 2018, attached as
Annexure “FA11”
to the founding affidavit, is suspended
pending the outcome of any review of that ruling in due course.
[4]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M Sikhakhane
instructed by Mbuyisa Moleele Attorneys Inc
RESPONDENT:
P Buirski
instructed by SGV Attorneys
[1]
Booysen
v Minister of Safety & Security & others
(2011) 32
ILJ
112
(LAC) at 129, para [54].
[2]
Section 77A (e) of the BCEA reads: "Subject to the provisions
of this Act, the Labour court may make any appropriate order,
including an order – (e) making a determination that it
considers reasonable on any matter concerning a contract of
employment
in terms of section 77 (3), which determination may
include an order for specific performance, and award of damages or
an award
of compensation." Asian
[3]
GN 344 of 21 April 2011 (GG no 34213)
[4]
(2010) 31 ILJ 529 (SCA) at 553-4, para [56].