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[2018] ZALCJHB 456
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Maluleke v Greater Giyani Local Municipality and Others (J3093/18) [2018] ZALCJHB 456; (2019) 40 ILJ 1061 (LC) (4 October 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
case
no: j 3093/18
In the matter between:
RISIMATI HITLER
MALULEKE Applicant
and
GREATER GIYANI LOCAL
MUNICIPALITY First
Respondent
THE SPEAKER, GREATER
GIYANI MUNICIPALITY Second
Respondent
THE CHIEF-WHIP,
GREATER GIYANI MUNICIPALITY
Third
Respondent
THE MAYOR, GREATER
GIYANI MUNICIPALITY Fourth
Respondent
THE MUNICIPAL
MANAGER
GREATER GIYANI
MUNICIPALITY Fifth
Respondent
Heard:
11 September 2018
Delivered:
4 October 2018
JUDGMENT
MAHOSI J
Introduction
[1]
The applicant
approached this Court, by way of urgency, seeking an order to the
effect that:
‘
1.
The investigation report by Paradigm Forensic Services (Pty) Ltd
dated 25
th
June 2018 be declared unlawful, null and void;
2.
The charges against the applicant relating to his previous employment
period be declared
null and void as they are irrational and unlawful.
3.
The 5
th
respondent’s decision to charge the
applicant where the latter was acting as Municipal Manager be
declared unlawful and
ultra vires
.
4.
The 1
st
, 2
nd
, 3
rd
and 4
th
respondents and any person acting on their behalf be interdicted from
proceeding with and be ordered to immediately suspend the
disciplinary hearing against the applicant pending finalisation of
this application.’
Brief
background facts
[2]
The background facts of the case are as follows: The applicant was
employed by the
first respondent (Municipality) on a five-year
fixed-term contract as Chief Financial Officer (CFO), which came to
an end in February
2017 (I will refer to this contract as the “first
fixed-term contract”). It is common cause that during the first
fixed-term
contract, the applicant also had an acting stint in the
capacity of Municipal Manager.
[3]
Subsequently, the position of CFO was advertised and the applicant
applied for that
vacancy. Having successfully gone through the
recruitment process, the applicant was again appointed on a
fixed-term contract that
is to end on 31 April 2022. (I will refer to
this as the “second fixed-term contract”).
The
suspension and charges
[4]
On 11 May 2018, the applicant was placed on immediate suspension with
full pay. On
04 July 2018, he was served with a notice to attend a
disciplinary hearing and a charge sheet. The charges levelled against
the
applicant include
inter alia
, various acts of misconduct
relating to misappropriation of Municipality’s funds amounting
to approximately R150 million.
It is common cause that these alleged
acts of misconduct occurred during the period of the first fixed-term
contract.
[5]
The disciplinary inquiry was scheduled to commence on 13 July 2018,
however, it was
postponed to
24 July
2018 in order to
allow
the applicant to sort out issues of representation.
It
was further postponed to 6 August 2018. On that date, the applicant
raised points
in limine
,
challenging the lawfulness of the charges relating to the alleged
misconduct committed during the first fixed-term conduct, those
committed when he was acting as a Municipal Manager and the
lawfulness of the investigator’s report.
T
he
chairperson dismissed some of the points
in
limine
and ruled that others will
require evidence during the hearing.
[6]
On 23 August 2018, the applicant launched an
ex parte
urgent
application in the Limpopo High Court. The application was struck off
the roll for lack of urgency, with costs, on 30 September
2018.
[7]
Undeterred, the applicant (without having withdrawn the matter from
the High Court)
launched an urgent application before this Court
seeking an order set out in paragraph 1 above. The Municipality
opposed the urgent
application on the basis that (a) the matter was
still pending before the Limpopo High Court and, (b) the application
was not urgent.
Lis alibi pendens
[8]
As
intimated earlier, the applicant filed an urgent application at the
Limpopo High Court for the identical relief sought in this
application.
It
is, therefore, necessary to consider the underlying principles of the
defence
lis
alibi pendens.
In
Nestlé
(South Africa) (Pty) Ltd v Mars Inc,
[1]
Nugent
AJA said the following:
‘
The
defence of
lis alibi pendens
shares features in common with the defence of
res
judicata
because they have a common
underlying principle, which is that there should be finality in
litigation. Once a suit has been commenced
before a tribunal that is
competent to adjudicate upon it, the suit must generally be brought
to its conclusion before that tribunal
and should not be replicated
(
lis alibi pendens
).
By the same token the suit will not be permitted to revive once it
has been brought to its proper conclusion (res judicata).
The same
suit between the same parties, should be brought once and finally.’
[9]
In making out a case for
lis
a
libi pendens
, the
Municipality contended that the relief sought by the applicant was
similar to the relief he sought at the High Court. It was
submitted
that until the matter is formally withdrawn by the applicant, the
matter is still pending and the applicant is precluded
from
instituting similar proceedings seeking similar relief in another
court.
[10]
To counter this argument, the applicant contended that the matter
before the High Court has been
withdrawn. In support of his argument,
the applicant relied on the notice of withdrawal which was attached
to his papers. Although
the notice had no court stamp, it was duly
served on the attorneys of the Municipality on 10 September 2018. It
is quite clear
that the application before the High Court has been
withdrawn and therefore the defence of
lis
a
libi pendens
has no merit.
Urgency
[11]
As already pointed out,
in this Court, as was
the case in the High Court, urgency is strongly opposed.
The
Municipality argued that the applicant was served with the charge
sheet on 4 July 2018 and further that he identified the issues
brought in this application prior to 17 August 2018 when he received
the bundle of documents from the Municipality. The Municipality
further argues that the applicant failed to approach this Court prior
to 17 August 2018, instead, he approached the Limpopo High
Court on
27 August 2018 and only approached this Court on 3 September 2018.
Furthermore, the applicant fully participated in the
inquiry wherein
evidence of one witness has been led and he raised certain points
in
limine
. The Municipality argued that such urgency is
self-created.
[12]
The requirements for urgency are trite.
[2]
A
party seeking urgent relief must set out the reasons for urgency and
why urgent relief is necessary. In
Maqubela
v SA Graduates Development Association and Other
s,
[3]
considerations
for urgency were set out as follows:
‘
Whether
a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set
out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances where
urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of the applicant
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons why urgent relief is
necessary.’
[13]
In the case where a party seeks final relief on an urgent basis, such
as the applicant in this
matter, the bar is raised even higher and I
find the following passage in
Tshwaedi
v Greater Louis Trichardt Transitional Council
[4]
instructive:
‘…
An
applicant who comes to court on an urgent basis for final relief
bears an even greater burden to establish his right to urgent
relief
than an applicant who comes to court for interim relief…’
[14]
The applicant argues that he will suffer irreparable harm and further
that he will be unduly
prejudiced if the disciplinary hearing is
allowed to continue in its current form. His apprehension appears to
be based on the
fact that his right to a fair trial and procedure
would be affected if he were to be subjected to a disciplinary
enquiry which
is based on irregular charges which are
ultra vires
.
[15]
There is no merit in this submission. Having had regard to the papers
before me, and particularly
the fact that this matter involves
allegations of misappropriation of millions of municipal funds, which
are in their very nature
public funds, and also the possibility that
it might be out of the public purse that this litigation is funded
and further, in
keeping with the tenets of the Labour Relations
Act
[5]
(LRA),
to resolve labour disputes speedily, I will deal with the issues
raised by the parties hereunder.
The relief sought by
the applicant
The right to charge
the applicant
[16]
The applicant challenges the authority of the Municipal Manager to
charge him. According to the
applicant, this conduct by the Municipal
Manager is
ultra
vires
.
He relies on Regulations 5(2) and 5(7) of the Local Government:
Disciplinary Regulations for Senior Managers, 2010
[6]
for
the contention that the authority to charge him resides with the
Mayor and not the Municipal Manager. Thus, the Municipal Manager’s
right to charge him is limited to where he is the CFO and not when he
acted as Municipal Manager. Regulation 5 provides as follows:
‘
Disciplinary
procedures
5(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 sub-regulation (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.’
[17]
The applicant argued that for the alleged acts of misconduct that
occurred while he was the Acting
Municipal Manager, it is only the
Mayor who has the authority to charge him. The Municipal Manager is
only entitled to charge senior
managers reporting to him. The
applicant offered the following explanation in his founding
affidavit
[7]
“
the
post of Municipal Manager, hence the person occupying same or acting
in such post reports to the Mayor. In the premises a person
occupying
or acting in such position may only be charged by the Mayor”
.
[18]
This, however, does not assist the applicant’s case for two
reasons: The Municipality contended
that the applicant was at all
material times appointed as a CFO. Further that his appointment as
Acting Municipal Manager was done
in terms of Section 54 (A)(1)(b) of
the Local Government: Municipal Systems Act (Regulations)
[8]
which
states that the applicant was an acting Municipal Manager under
circumstances and for a period as prescribed. In my mind,
the fact
that the applicant had an acting stint as Municipal Manager, did not
confer on him, an unfettered status of Municipal
Manager. It is clear
that he did not cease to be a CFO during the time when he was the
acting Municipal Manager. On his own admission,
the founding
affidavit states that he was appointed as a CFO.
[19]
The applicant is currently employed as a CFO and he is responsible
for the financial management
of the Municipality. I accept that the
applicant was the CFO and that he acted as a Municipal Manager at
some point. Therefore,
the challenge to the authority of the
Municipal Manager to charge him is unsustainable. Moreover, it is the
Council that must consider
the Municipal Manager’s report and
having considered it, by way of resolution, authorise the Municipal
Manager to (a) appoint
an independent and external presiding officer
and an officer to lead evidence; and (b) to sign their letters of
appointment. It
is therefore the Council that in effect institutes
proceedings against the senior manager.
[20]
The applicant further argued that because the Municipality failed to
charge him during the period
of the first fixed-term contract, the
Municipality waived its right to charge him. He contended that the
employment contract/relationship
under which the alleged acts of
misconduct were committed has lapsed and that there is no continued
employment relationship in
that regard as he was appointed on a new
fixed-term contract.
[21]
To counter this argument, the Municipality submits that it currently
employs the applicant in
the same position as he previously occupied
and that although the period has lapsed, the fact that the applicant
is employed in
the same position does not affect the ability of the
Municipality to discipline him on misconduct committed during the
period of
the first fixed-term contract.
[22]
A simple reading of the applicant’s papers seems to offer an
alternative in that he argues
that because the Municipality failed
to charge him during the period of the first fixed-term contract,
the Municipality waived
its right to charge him. He contended that
the employment contract/relationship under which the alleged
acts of misconduct were committed has lapsed and that there is no
continued employment relationship in that regard as he was appointed
on a new fixed-term contract.
[23]
To counter this argument, the Municipality submits that it currently
employs the
applicant in the same position as he
previously occupied and that although the period has lapsed, the fact
that the applicant is
employed in the same position does not affect
the ability of the Municipality to discipline him on misconduct
committed during the
period of the first fixed-term contract.
[24]
The Municipality submitted that it in fact did not waive its rights
to charge the applicant,
as it was not aware of the alleged
misconduct during the period of the first fixed-term contract and
that it would not have considered
him for appointment on the second
fixed-term contract had it known of the alleged misconduct at
that time.
[25]
The above arguments by the applicant are self-defeating. On the one
hand, he contends that the
first fixed-term contract which governed
the employment relationship during the period that he is
alleged to have committed
the misconduct has lapsed. If I
understand this argument correctly, so would be the case for
the charges. Therefore,
the Municipality cannot charge him on
misconduct allegedly committed during that period.
[26]
On the other hand, the applicant makes an about turn and contends
that the Municipality
waived its right to discipline him. This
cannot be, either the Municipal Manager has no authority or
right to charge him
or that he/she has. The applicant’s
argument suggests that the charges should be separated and the
Municipal
Manager should charge him for those alleged to have
occurred under the title of CFO and then the Mayor should charge him
for those
alleged to have occurred under the title of
Municipal Manager. As to how this could logically be viable is a
fallacy. What
the applicant in fact does is throw mud balls at
the wall and hope that one of them will stick. This cannot be
countenanced.
Having said this, I am of the view that none of
these arguments are sustainable.
[27]
The law on the doctrine of waiver is well established. As early as
1920, Hoexter JA in
Administrator,
Orange Free State v Mokopanele and Others
[9]
pronounced
that before a party can be held to have surrendered his right, he
must know of his right. A similar approach was adopted
some four
years later in
Laws
v Rutherford
[10]
where
the Court held that
before
a waiver can be upheld, it must be demonstrated that the person who
is alleged to have waived his or her right knew that
he or she was
waving her right.
It
logically follows then that in order to constitute waiver, the
relevant conduct of the party alleged to have waived the right
must
be clearly inconsistent with the exercise of the right alleged to
have been waived. Simply put, the conduct of the Municipality
and the
exercise must be mutually exclusive.
[28]
In my view, the Municipality did not waive its rights to charge the
applicant, as it was not
aware of the alleged misconduct during the
period of the first fixed-term contract. The Municipality submitted
that it would not
have considered him for appointment on the second
fixed-term contract had it known of the alleged misconduct at that
time. This
is a reasonable proposition. It is a trite principle in
our law that an employer has a right or prerogative to discipline an
employee.
In this matter, the Municipality is and remains the
employer and the applicant remains an employee and CFO of the
Municipality,
who is responsible for public funds.
[29]
Equally unsustainable is the contention advanced by the applicant
that the Municipality lacks
authority to charge him. In
Fourie
v Amatola Water Board,
[11]
this
Court relying on a Canadian authority held as follows:
‘
However,
I am not
persuaded that this
principle is not the correct principle which should be adopted in the
present matter. I say this also because
of the fact that such
prejudice that the applicant may suffer is clearly outweighed by the
prejudice that the employer will suffer
if the employer is not
allowed to exercise its prerogative to discipline employees who are
guilty of misconduct
,
especially serious misconduct’.
[30]
Considering the above authorities, this Court is not inclined to
deprive the employer herein
the right of charging an employee,
especially taking into account the severity of the alleged acts of
misconduct.
Non-Compliance
with Regulation
5 (3)(a).
[31]
Another issue raised by the applicant relates to the appointment of
the independent investigator.
The submission made in this regard is
that the forensic report is unlawful because the Municipality failed
to appoint the investigator
within seven days of being satisfied that
there is reasonable cause to believe that the applicant committed
an act of misconduct. To buttress his argument,
the applicant relied on Regulation 5(3)(a).
[32]
In essence, he contended that absent compliance with the peremptory
provision of the Regulations,
the report is null and void. The
Municipality
argued that there was no
delay. It submits that it had to convene a Council meeting wherein
the Council resolution was adopted on
11 May 2018 and a Special
Council Resolution was adopted on 31 May 2018 authorising the
Municipal Manager to appoint an independent
investigator.
[33]
The Municipality argues that even if it is found that the decision to
appoint the independent
investigator was out of time, the proper
procedure was for the applicant to have the appointment of the
independent investigator
and the forensic report reviewed and set
aside. I am in agreement that there was lack of adherence with
Regulation 5(3)(a)
and
that there was a delay in appointing the independent investigator.
However,
a
failure by a municipality to comply with relevant statutory
provisions does not necessarily lead to the actions under scrutiny
being rendered invalid. The question is whether there has been
substantial compliance, taking into account the relevant statutory
provisions in particular and the legislative scheme as a whole. (See
Liebenberg
NO and Others v Bergrivier Municipality)
[12]
[34]
In my view, there is unchallenged evidence that on 11 May 2018, the
Council considered the report
by the Municipal Manager and resolved
to place the applicant on precautionary suspension pending
representation on why he should
not be put on suspension. The
applicant was afforded seven days within which to make representation
prior to his suspension as
required by Regulation 6(2). It was on 25
May 2018, after the applicant’s failure to make representation
that the Council
resolved to appoint the independent investigator.
Although there was non-compliance with Regulation 5(3), there is no
argument
that the Municipality neglected to comply with the
provisions of the Regulations. The evidence is compelling
that
the Municipality was conscious of the importance of the requirements
in the overall scheme to ensure fairness. It cannot be
said that
non-compliance with Regulation 5(3) rendered the investigator’s
report unlawful.
Can the Court
intervene in an incomplete disciplinary enquiry?
[35]
This
Court has innumerable times, expressed an unwillingness to interfere
in
incomplete
disciplinary inquiries. In
Jiba
v Minister: Department of Justice and
Constitutional Development and Others
[13]
the
Court held:
'Although
the court has jurisdiction to entertain an application to intervene
in
uncompleted
disciplinary proceedings,
it
ought not to do so unless the
circumstances
are truly exceptional. Urgent applications to review and set aside
preliminary
rulings made during the course of a disciplinary enquiry or to
challenge
the validity of the institution of the proceedings ought to be
discouraged.
These are matters best dealt with in arbitration proceedings
consequent
on any allegation of unfair dismissal, and if necessary, by this
court
in review proceedings …’
[14]
(my
emphasis)
[36]
The guiding principle, which this Court must follow, is the question
whether there exists, any
truly exceptional circumstances, which
warrants the granting of the relief as sought by the applicant. More
so, where he seeks
final relief. The applicant failed to show that
there are exceptional circumstances warranting granting of the orders
as sought.
[37]
I am not persuaded that the applicant has made out a case for the
relief he seeks. This is a
typical case where the litigant is clearly
abusing the court’s processes and scarce judicial resources
have been channelled
on a meritless application brought before an
urgent court which is already clogged. The applicant has not
demonstrated how his
rights to a procedurally fair inquiry are
infringed. For these reasons, the application must fail.
Costs
[38]
The respondents sought an order of costs
de
bonis propriis
against the applicant. The rule of practice that costs follow the
result does not apply in Labour Court matters.
[15]
However,
in a case where the conduct of the litigant was frivolous,
mala
fide
and forum shopping the court must show its displeasure. In this
matter, while the disciplinary hearing was still in progress, the
applicant approached the High Court and after his application was
struck off the roll with costs he rushed to this Court with a
similar
application. I am of the view that the costs of this litigation must
be borne by the applicant.
[39]
In the circumstance, I make the following order:
Order
1.
The application is dismissed with costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For the applicant:
Mr
MH Letsela of Letsela Attorneys
For the
respondents:
Advocate
Y Saloojee
Instructed
by Lebea and Associates
[1]
2001 (4) SA 542
(SCA
).
[2]
See:
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers)
1977 (4) SA 135
(W).
[3]
(2014) 35 ILJ 2479 (LC) at para 32
.
[4]
[2000] 4 BLLR 469
(LC) at para 11.
[5]
Act
66 of 1995 as amended.
[6]
Government
Gazette No. 34213 dated 21 April 2011.
[7]
Page
19 of the indexed bundle, at para 10.3.
[8]
Act
32 of 2000.
[9]
(1920) 11 ILJ 963 AD at p 968.
[10]
1924
AD 261
.
[11]
(P
830/00)
[2000] ZALC 133
(16 November 2000) at para16.
[12]
2013
(8) BCLR 863 (CC).
[13]
[2009]
10 BLLR 989 (LC).
[14]
At
para 17.
[15]
Zungu v
Premier of the Province of Kwa-Zulu Natal and Others
(2018)
39 ILJ 523 (CC).