About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 411
|
|
Mothogoane and Another v Lepelle-Nkumpi Local Municipality and Another (J 4115/18) [2018] ZALCJHB 411; (2019) 40 ILJ 1072 (LC) (11 December 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: J 4115/18
In the matter between:
THABO
BEN MOTHOGOANE
First
Applicant
ROSINA MANGAKA
NGOVENI
Second
Applicant
and
LEPELLE-NKUMPI LOCAL
MUNICIPALITY
First Respondent
CLLR N. G. SIBANDA
(MAYOR OF THE FIRST
RESPONDENT)
Second Respondent
Heard: 22 November
2018
Delivered: 11 December
2018
JUDGMENT
MAHOSI,
J
[1] This is an urgent
application in terms of which the applicants seek an order in the
following terms:
‘
1.
Dispensing with the requirements of Rule 7 of the Rules for the
Conduct of proceedings in the Labour Court and hearing the above
application on an urgent basis in terms of Rule 8 of the
abovementioned Rules; Declaring the Resolutions No: 6.1.01/2018/2019
and No: 7.2.02/2018/2019 by the 1
st
Respondent’s Council to be invalid, unlawful and of no force
and effect and setting the same aside;
2.
Declaring the Applicants’ suspensions as a consequence of the
aforementioned Resolutions to be invalid, unlawful and of
no force
and effect and setting the same aside;
3.
Ordering the Respondents to reinstate the Applicants with immediate
effect and to forthwith comply with the Applicants’
contracts
of employment and conditions of service;
4.
Ordering the 1
st
Respondent to pay the costs of this
application on a scale as between attorney and client;
5.
That further and/or alternative relief that this Honorable Court
deems fit and appropriate be granted to the applicant.’
[2]
Prior to outlining the applicants’ case in detail and
considering the issues that gave rise to the claim, it is necessary
to summarise the facts that form relevant background to the dispute
between the parties.
[3] The first applicant
commenced his employment with the first respondent on 1 September
2017 as its Municipal Manager and the
second applicant commenced his
employment with the first respondent on 1 April 2018 as its Chief
Financial Officer. They are both
employed in terms of a fixed term
contracts.
[4] On 26 October 2018,
the first applicant was served with a notice of intention to suspend
him in terms of which the following
was stated:
‘
1.
Council in its special meeting held on 26 October 2018 noted that
there are serious allegations of misconduct against you which
require
that Council should consider suspending you from duty as a
precautionary measure pending a full investigation into the
said
allegations. Council consequently authorised the Executive Mayor to
serve you with an intention to suspend you from duty pending
investigations of allegations of misconduct against you.
2. The allegations of
misconduct against you are as follows:
2.1 The Municipality is
implicated as one of the Municipalities which has invested
approximately One Hundred and Fifty Million (R150
000 000) with VBS.
The said institution is a mutual bank and not registered in terms of
the Banks Act. A municipality is not allowed
to invest with a Mutual
bank. As the Municipal Manager and the Accounting Officer of the
Municipality you are the most senior employee
who could have been
involved in the alleged investment.’
3. Council views these
allegations as very serious as they involve an abuse of huge amounts
of money which belongs to the Municipality
hence it resolved to
conduct its own investigation into the allegations. In view of the
seriousness of the allegations, and the
position you hold in the
Municipality as head of the administration at the municipality,
Council is of the view that the integrity
of the investigation as its
findings may be compromised in the event you remain in active duty
pending investigations. Furthermore
it will be detrimental to the
interests of the Municipality if the investigations are conducted
while you are still on duty since
there is a potential that you may
interfere with the investigations, there is a likelihood that you may
temper with or destroyed
documents which are necessary for the
investigations since you are the custodian of all the documents at
the Municipality, potential
witnesses feel intimidated as the
witnesses will need your permission to consult with the investigators
and may commit further
acts of misconduct. The above are some of the
reasons why Council intends placing you on precautionary suspension.
4. In the circumstances
you are requested to provide the reasons as to why you should not be
suspended pending the conclusion of
the investigation and possible
disciplinary hearing. Your reasons should be submitted to the Mayor
by not later than Friday the
2
nd
November 2018 before
16:00. In the event the Mayor does not receive the said reasons as
stated above Council may unfortunately
take the decision without your
input.’
[5] The second applicant
was also served with a similar letter of intention to suspend him
from his duty. The applicants were both
required to provide reasons
by no later than 2 November 2018 at 16:00 as to why they should not
be suspended pending the conclusion
of the investigation and possible
disciplinary hearing, failure of which the Council would take a
decision without their input.
On 29 October 2018, the first applicant
addressed an email to the respondents requesting that he be provided
with the report that
was served before Council and which resulted in
the resolution as well as a copy of the resolution.
[6] On 1 November 2018,
the applicants’ attorney addressed a correspondence to the
second respondent requesting to be provided
with the item and report
that served before the Council and which resulted in the resolution
of intention to suspend the applicant
as well as the minutes of the
Council reflecting the attendance by councillors, the procedure
followed and the resolution. As no
response was forthcoming, the
applicants’ attorney addressed further two letters to the
second respondent on 6 November 2018.
[7] On 8 November 2018,
the applicants received correspondence from the second respondent in
terms of which they were provided with
the requested Council
resolution. The applicants were further requested to make
representation before 8:00 the following day. On
9 November 2018, the
applicants’ attorney addressed a correspondence to the second
respondent advising that the applicants
would only be able to make
their representation by 12 November 2018. On the same day, the
Council took a resolution to suspend
the applicants with immediate
effect notice of which was served on them on 13 November 2018.
[8]
On 15 November 2018, the applicants’ attorney addressed a
letter of demand to the respondents, demanding the upliftment
of the
applicants’ suspension. In the absence of a response, the
applicants brought this application.
The
Municipality opposed this application for lack of urgency and on
merit.
Urgency
[9] As earlier intimated,
in this matter
, urgency is strongly opposed.
The Municipality argued that the applicants were served with
the notices of intention to suspend them on 26 October 2018, but
failed
to make representations because of their legal
representative’s unavailability in that he was involved in
several urgent
applications wherein he represented the Mahikeng Local
Municipality. It was argued, on behalf of the Municipality, that this
was
an indication that the matter was never urgent for the applicants
and further that if there was urgency, such urgency is self-created.
[10]
The requirements for urgency are trite.
[1]
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,
[2]
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
to
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons why urgent relief
is
necessary.’
[11]
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
[3]
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…’
[12]
It
is not in dispute that the Council took a resolution on 9 November
2018 to suspend the applicants and that they were served with
notices
of suspension on 13 November 2018. This application was filed on 16
November 2018. 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
[4]
(LRA), to
resolve labour disputes speedily, I will deal with the issues raised
by the parties hereunder.
The relief sought by
the applicant
[13]
The applicants challenged both the legality of resolutions of the
first respondent and the applicants’ suspensions on
three
grounds. The first ground is that the resolutions are unlawful for
lack of compliance with section 160(3)(c) of the Constitution
and
section 30(3) of the Municipal Structures Act
[5]
.
The second ground is that the suspensions are not compliant with
Regulation 6 of the
Disciplinary
Regulations
[6]
and
the third ground is that there is no rationale behind the decision to
suspend.
Constitutionality
[14] The applicants’
contention is that none of the resolutions in question were taken
pursuant to a vote in terms of section
160(3)(c) of the Constitution
and section 30(3) of the Municipal Structures Act. Section 160 of the
Constitution that provides
as follows:
‘
(1)
A Municipal Council—
(a)
makes decisions concerning the exercise of all the powers and the
performance of all the functions of the municipality;
(b)
must elect its chairperson;
(c)
may elect an executive committee and other committees, subject to
national legislation; and
(d)
may employ personnel that are necessary for the effective performance
of its functions.
(2)
The following functions may not be delegated by a Municipal Council:
(a)
The passing of by-laws;
(b)
the approval of budgets;
(c)
the imposition of rates and other taxes, levies and duties; and
(d)
the raising of loans.
(3)
(a) A majority of the members of a Municipal Council must be present
before a vote may be taken on any matter.
(b)
All questions concerning matters mentioned in subsection (2) are
determined by a decision taken by a Municipal Council with
a
supporting vote of a majority of its members.
(c)
All other questions before a Municipal Council are decided by a
majority of the votes cast.’
[15]
Section 30(3) echoes the provisions of section 160(3)(c) and
it provides as follows: ‘Quorums and decisions
(1)
A majority of the councillors must be present at a meeting of the
council before a vote may be taken on any matter.
(2)
All questions concerning matters mentioned in section 160(2) of the
Constitution are determined by a decision taken by a municipal
council with a supporting vote of a majority of the councillors.
(3)
All other questions before a municipal council are decided by a
majority of the votes cast, subject to section 34. 5
(4)
If on any question there is an equality of votes, the councillor
presiding must exercise a casting vote in addition to that
councillor’s vote as a councillor.
(5)
Before a municipal council takes a decision on any of the following
matters it must first require its executive committee or
executive
mayor, if it has such a committee or mayor, to submit to it a report
and recommendation on the matter—
(a)
any matter mentioned in section 160(2) of the Constitution;
(b)
the approval of an integrated development plan for the municipality,
and amendment to that plan; and
(c)
the appointment and conditions of service of the municipal manager
and a head of a department of the municipality.’
[16]
In
Provincial
Minister for Local Government, Environmental Affairs and Development
Planning, Western Cape v Municipal Council of the
Oudtshoorn
Municipality and Others
[7]
the Court stated as
follows:
‘…
On
the other hand, the procedure envisaged in section 160(3)(c) is that
if the motion does not concern any of the functions which
are set out
in section 160(2) of the Constitution, a decision can be taken by a
majority of the votes cast. This would mean that
a mere majority of
the quorum required would suffice in order to pass a motion.
Following the scenario sketched above, this would
mean that if 13
council members out of a complement of 24 or 25 attend a meeting, a
motion would then be carried if seven of the
council members in
attendance voted in favour of it…’
[17]
In raising the constitutional challenge, the third respondent relied
on his knowledge, as a Municipal Manager, of the fact
that the
Council has never before put a matter for vote as required. In its
answering affidavit, the Municipality submitted that
the motions to
adopt the resolutions in question were unanimous, making it
unnecessary to vote. This was simply denied by the applicants
in the
replying affidavit.
[18]
There
is a real dispute of fact that exists on the papers in relation to
the question whether the decision was taken by a majority
of votes
casted. To establish this, the Court has to consider the facts as set
out in the pleadings in accordance with the well-known
principles set
out in
Plascon-Evans
Paints Ltd v Van Riebeck Paints (Pty) Ltd
[8]
which were restated by
the LAC in
Kwa-Zulu
Natal Tourism Authority and Others v Wasa
[9]
where it stated as
follows:
‘…
a
founding affidavit must set out all of the essential evidence which,
if left unchallenged, would prove the applicant’s case
and
grant it the relief sought. Alternatively, challenges to the
averments the applicant makes could arguably not be sustained.
However, where an applicant can or should anticipate that the facts
essential for it to prove its case would be challenged, it
should not
proceed by way of application but by way of action. The reason for
this is that where there will be dispute of fact
the court will be
unable to determine on the papers before it where the truth lies and
it will simply dismiss the application on
the basis that the
applicant had failed to discharge its
onus
by
proving its case on a balance of probabilities. While the Court
always has a discretion to refer certain issues in an application
for
oral evidence, where there are disputes of fact, this is not
automatic. In my view, a Court will or should however never refer
an
application to be determined by the leading of oral evidence, thus
converting an application to a trial, where an applicant,
in total
disregard of the principle that where disputes of facts are
anticipated a matter should be instituted by way of action,
proceeds
nonetheless by way of an application.’
[19] The first applicant
only made a bold statement that he
knows for a
fact the resolutions were not taken pursuant to
a
vote and relied on his knowledge
that
the Council has never before put a matter for vote as required. To
counter this, the Municipality submitted that the decision
was taken
unanimously.
The Municipality’s submission was met with
a bare denial from the applicants and
no basis
was laid for disputing the veracity or accuracy of the averment.
[20] The issue here is
not whether what the Municipality says is true but whether applying
the
Plascon
Evans
test,
the Court is obliged to accept the version of the Municipality.
[10]
On
a full conspectus of all the evidence, the applicant’s
averements are not sufficient to satisfy the Court
on
a balance of probabilities
that
the resolutions were taken without voting. In the absence of the
facts being tested by leading oral evidence, the Court has
no choice
but to accept the respondent’s version that the motion was
passed unanimously by
the
majority of the quorum required as contemplated by section 60(3) of
the Constitution.
Where
a decision is unanimous, it means everyone is in total agreement.
There was, therefore, nothing before the Council to be debated
or to
be put to vote. The applicants’ constitutional challege can,
therefore, not succeed.
Non-Compliance with
Regulation 6
[21] The applicants
attacked the validity of the notices of suspension on the basis that
they contain no specificity as they set
out almost verbatim the
wording of the Regulation 6(1). In essence, they allege that the
respondents failed to provide substantive
explanation or
justification for not allowing the applicants to remain in active
duty pending investigation. Regulation 6 provides
as follows:
‘
Precautionary
suspension
6.(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.’
[22] It is apparent from
the reading of the aforementioned Regulation that what is required
for the suspension to be lawful is at
least a reasonable belief on
the part of the Municipality that
prima facie,
the employee
had committed an act of serious misconduct, an objectively
justifiable reason to deny the employee access to the workplace
and a
reasonable opportunity to make representations prior to the decision
to suspend being taken. The applicant’s contention
is that the
Municipality failed to satisfy the latter two requirements.
[23] The reasons
proffered by the Council for placing the applicants on precautionary
suspension were that, given the seriousness
of the allegations and
the positions they hold: (a) they might compromise the integrity of
the investigation and its findings in
the event they remain in active
duty pending investigations, (b) it would be detrimental to the
interests of the Municipality if
the investigations are conducted
while they are still on duty since there is a potential that they may
interfere with the investigations,
(c) there is a likelihood that
they may temper with or destroy documents which are necessary for the
investigations since they
are the custodian of all the documents at
the Municipality (d) the potential witnesses may feel intimidated and
will need their
permission to consult with the investigators and (e)
they may commit further acts of misconduct.
[24] The applicants’
contention was that the allegations in their notices of suspension
were identical, notwithstanding the
fact that they occupy two
different positions. This, they argued, amounted to nothing more than
lip service to the requirements
of Regulation 6.
[25]
It is not surprising that the applicants’ notices of suspension
were identical. They are both the most senior employees
of the
Municipality and they are charged with the same offence. To add to
that, they conceded that they were responsible for the
investments
made and that the facts in relation thereto are not in dispute. The
seriousness of the allegations against them is
also not disputed. The
fact that their notices of suspension were identical does not render
them non-
compliant with Regulation 6(1).
[26] The applicants
further attacked the legality of the notices of suspension on the
basis that they contain no specificity as
they set out almost
verbatim the wording of Regulation 6(1). They submitted that although
the reasons to suspend them would apply
to each and every senior
manager in circumstances where there are allegations of serious
misconduct, their position is different
because the decision to
suspend them was premised on an instruction from the Provincial
Government, or at least as a consequence
of political pressure.
Further that to an extent that they cooperated with the forensic
auditors appointed by the Provincial Treasury
to determine whether
any legal provisions were flouted by Municipalities by investing with
VBS, they see no possibility of tempering
with or destruction of
documents and they cannot see any reason why their presence at the
workplace may be detrimental to the stability
of the Municipality.
There is no merit to the applicants’ contention that their
position is different.
[27]
It is common cause that the resolution to place them on precautionary
suspension pending internal investigations was taken
by the Council.
Whether the Council’s resolution was informed by political or
societal pressure is of no consequence. The
fact of the matter is
that the applicants invested an
obscene amount of public money
with VBS. I agree with the Municipality’s contention that it
could not be that such an amount
of money, that has caused public
outcry, could go unnoticed and unaccounted for. Had the Municipality
not acted, it could have
failed in its respective constitutional and
legislative duties.
[28]
I find the applicants’ precautionary suspension to have
been motivated by objectively justifiable considerations as envisaged
by Regulation 6(1).
In fact, given the
seriousness of the alleged misconduct the applicants are charged
with, their removal as a precautionary
measure is compelling.
[29] The applicants
further challenged their suspension on the basis that the
Municipality failed to comply with Regulation 6(2).
The submission
made in this regard was that the applicants were deprived of an
opportunity to show that the allegations of misconduct
are unfounded
and that the suspension would not be justified.
[30]
As earlier intimated, the notices of suspension were served on the
applicants on 26 October 2018 and they were required to
make
representations by 2 November 2018. They only requested further
particulars from the Municipality on 29 October 2018 and on
1
November 2018. They were provided with the resolution on 8 November
2018 and were further required to make representations on
9 November
2018.
This was the day on which the Council
was due to hold a special meeting to consider the applicants’
representations. The applicants
did not make the representations,
instead they instructed their attorney to address correspondence to
the Council, which records:
‘
6.
Mr Scholtz has been involved in several urgent applications during
the last few days and is currently representing the Mahikeng
Local
Municipality in a disciplinary enquiry held in Mahikeng. Considering
the stance adopted by you, the extremely short notice
afforded in
terms of your aforementioned letter and our Mr Scholtz’s
unavailability, we will only be able to provide you
with our client’s
representations by Monday, 12 November 2018.’
[31] As per their notices
of intention to suspend, the Council passed a resolution to suspend
them without their input. Although,
the applicants were required to
make representations on 2 November 2018, it was only on 9 November
2018, after the applicant’s
failure to make representations
that the Council resolved to suspend them. They were not only
afforded seven days within which
to make representations prior to
their suspension as required by Regulation 6(2), but that period was
extended for them. They were
also provided with a copy of the
resolution as per their request.
[32]
Although the period of extension provided was short, the applicants
were afforded reasonable time as required by Regulation
6(2). In
addition, it is apparent from their founding affidavit that they had
enough information which would have enabled them
to make
representations within the period afforded to them in that they
attended a briefing session on 28 August 2018 in relation
to the
provincial forensic audit. It was quite unfortunate that their
attorney had other matters that were more pressing than theirs,
which
made it impossible for them to make representations by 9 November
2018. I therefore find that the evidence is compelling
that
the Municipality was conscious of the importance of the requirements
in the overall scheme to ensure fairness.
[33]
For the aforementioned reasons,
I
am satisfied that the suspension was both fair and lawful in
that there was compliance with regulation 6. The applicants
had a
reasonable and fair opportunity to make representations in response
to the allegations made against them, which were clearly
set out in
the notices of suspension and their suspension is on full pay and
shall continue for a period of three months ending
on 9 February
2019. Of importance is that should the disciplinary proceedings not
commence prior to 9 February 2019, their suspensions
shall
automatically lapse.
[34]
In the circumstances of this case, taking into account the
applicants’ positions,
the serious nature of
the allegations against them, the possibility that they could
adversely influence the investigation, the
public interest in
ensuring that allegations of corruption and mismanagement at the
highest levels of the public service are acted
against swiftly and
efficiently, I am satisfied that the suspension was both fair
and lawful.
For these reasons, the
application must fail.
Costs
[35]
The rule of practice that costs follow the result does not apply in
Labour Court matters.
[11]
However, in this case I am of the view that the costs of this
litigation must be borne by the applicants. 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.
[36]
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 Applicants:
Mr F.
Scholtz of Scholtz Attorneys
For the Third Respondent:
Advocate T.B. Hutamo,
Instructed
by:
Mapotene Mangena Inc.
Attorneys
[1]
See:
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers)
1977
(4) SA 135 (W).
[2]
(2014) 35 ILJ 2479 (LC) at para 32
.
[3]
[2000] 4 BLLR 469
(LC) at para 11.
[4]
Act
66 of 1995 as amended.
[5]
Act
117 of 1998.
[6]
Local Government: Disciplinary Regulations for Senior Managers,
2010.
[7]
2015 (10) BCLR 1187
(CC) at para 20
[8]
[1984] 2 ALL SA 366 (A); 1984 (3) SA 623 (A).
[9]
(2016) 37 ILJ 2581 (LAC).
[10]
Kwa-Zulu
Natal Tourism Authority and Others v Wasa
(2016)
37 ILJ 2581 (LAC).
[11]
Zungu v
Premier of the Province of Kwa-Zulu Natal and Others
(2018)
39 ILJ 523 (CC).