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[2018] ZALCJHB 429
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Minah v Elias Mostwaledi Local Municipality (J4519/2018) [2018] ZALCJHB 429; [2019] 5 BLLR 481 (LC) (28 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Of Interest to other Judges
Case No: J 4519/2018
In the matter between:
MAREDI RAMAKGAHLELA
MINAH Applicant
and
ELIAS MOTSWALEDI LOCAL
MUNICIPALITY Respondent
Heard: 19 December 2018
Delivered: 28 December 2018
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The national shame that became
known as “
The Great
Bank Heist’
related
to the spectacular collapse of the VBS Mutual Bank continues to rear
its ugly head in this and other Courts
[1]
.
With this urgent application, the applicant, who is the current
Municipal Manager of the respondent and placed on suspension,
seeks an order that her suspension be declared unlawful; and that the
suspension be set aside so that she can be allowed to resume
her
duties. The respondent opposed the application.
[2]
The facts of this case, most of which are fairly common cause may be
summarised as follows;
2.1
The applicant was officially
appointed in terms of a fixed term contract as a Municipal Manager
with effect from 1 December 2014.
The employment is in terms of
section 54A of the Local Government: Municipal Systems Act
[2]
(The Systems Act). Her terms and conditions of employment are subject
to the Local Government: Disciplinary Regulations for Senior
Managers
(The Regulations)
2.2 As the accounting officer, she
conceded to being party to certain investments that were made with
VBS Mutual Bank in the financial
year 2016/2017 and 2017/2018. She
contends that the investments were made on the recommendations of the
respondent’s Chief
Financial Officer, Mr Mapheto, who had also
attended to all administrative procedures in regards to those
investments. The applicant
rightly so, does not absolve herself from
accountability.
2.3
The applicant avers that at the
time that the investments were made on behalf of the respondent, she
was not aware that such investments
were made in contravention of
section 7 (3) (b) of the Municipal Finance Management Act (The
MFMA)
[3]
,
which prohibits municipalities from making investments in banks which
were not registered in terms of the Banks Act, 1990. VBS
is obviously
not registered in terms of the Banks Act.
2.4 Upon deposits being made, the
applicant averred that she had complied with her obligations to
furnish monthly reports detailing
the deposits made, which are also
reflected in the minutes of the Municipal Council as having been
accepted.
2.5 The applicant had also submitted
annual reports to National Treasury reflecting those investments,
which were also accepted.
Equally so, these deposits and investments
were reflected in the respondent’s annual financial statements,
subjected to audits
by both the respondent’s internal and
external auditors, who had not commented on those investments. The
National Treasury
according to the applicant also failed to
appreciate that there was anything wrong with those investments.
2.6 According to the applicant, at the
end of February 2018, she received a Provincial Treasury MFMA
Circular N0.4 (Banking and
Investments dated 27 February 2018 from
Limpopo Provincial Government), which served to guide municipalities
and associated entities
regarding the opening of bank accounts and
investments with financial institutions in line with the MFMA. At the
time, she had
immediately ordered the withdrawal of all investments
from VBS.
2.7 The respondent commenced investing
with VBS from 9 December 2016 of the financial year 2016/2017,
wherein a total amount of
R90 000 000.00 was invested in
three batches until April 2017. During the financial year 2017/2018,
five separate
investments were deposited until 15 December 2018 in
the amount of R100 000 000.00. The capital amount invested
plus
interest came to R192 559 000.40, which was withdrawn
on 27 February 2018, some few days prior to VBS being placed under
curatorship by the Minister of Finance. The applicant’s
contention is that the respondent did not lose any of its
investments,
and that on the contrary, it earned an interest of some
R2 millon.
2.8 The applicant was advised at a
Special Council meeting held on 31 October 2018 that it was resolved
that investigations would
ensue against her in relation to the
allegations of financial misconduct related to the investments made
with VBS. A disciplinary
board was duly mandated to conduct a
preliminary investigation into the matter in accordance with
Regulation 6(1) of the Regulations,
and to thereafter report back to
Council within 7 days.
2.9 On 1 November 2018, the Council
issued a notice of intention to suspend the applicant and the CFO
Mapheto. She was subsequently
served with the notice on 2 November
2018, and advised to give reasons why she should not be suspended.
The allegations were essentially
that;
2.9.1
She had made and/or authorised investments with VBS Mutual Bank
without following the applicable legal prescripts.
2.9.2
She had failed to comply with a duty imposed by the provisions of
Local Government: Municipal Finance Management Act 56 of 2003
read
with the Regulations and/or any applicable prescripts when investing
in the VBS Mutual Bank.
2.10 The applicant submitted her
representations on 12 November 2018 as to why she should not be
suspended. The disciplinary board
also submitted its report to the
Council on 27 November 2017. The board concluded that there were no
substantial grounds to warrant
a further investigation regarding the
matter, and that any investigations should be terminated in the light
of another investigation
conducted by the Limpopo Provincial
Treasury.
2.11 Despite the recommendations of
the board, the Council nonetheless took a resolution to institute a
full investigation into
financial misconduct against the applicant
and the CFO; to appoint an external investigator to handle the
investigation; and further
resolved that the CFO and the applicant be
placed on precautionary suspension.
2.12 On 27 November 2018, the
applicant and the CFO were verbally informed of their
precautionary suspension. They had however
carried on with their
duties. Following correspondence from the applicant’s attorneys
of record requesting reasons for the
suspension, the respondent’s
response on 3 December 2018 was to indicate that the matter would be
dealt with within 14 days.
[3]
On 7 December 2018 however, the applicant was handed a notice of
suspension with full pay, with reasons stated therein including
that
her representations were unavailing; that the allegations against her
were of a serious nature as they related to financial
misconduct;
that her seniority as head of administration and accounting officer
was also a justification to believe that she may
commit further acts
of financial misconduct; that it was in the best interests of
the Municipality to carry its full investigations
in her absence; and
that she may be in position of conflict of interest during those
investigations.
[4]
In contesting her suspension, the applicant contended that since the
disciplinary board had decided that there was no reason
to continue
with the investigations, the Municipality could not simply disregard
the board’s report and suspend her, as there
was no need for
further investigations based on that report. She further submits that
since the investigations in relation to the
VBS Mutual Bank
investment were concluded, there were no investigations which she
could interfere with.
[5]
She further contended that the suspension was not justified in
circumstances where the relevant facts in relation to the VBS
investments are currently in the public domain, as well as known to
the disciplinary board, and forensic investigators as appointed
by
the Provincial Government. There was according to the
applicant, no possibility of her tampering with the evidence, and
in
the circumstances, since the allegations of financial
misconduct related to the investments in VBS, similar conduct was
unlikely as VBS has since been placed under curatorship, and further
since she had withdrawn all investments from VBS. Accordingly,
she
submits that the reason for her suspension (investigations) had since
fallen away, as no other allegations of financial misconduct
were
levelled against her.
Evaluation:
[6]
Since the applicant seeks final
relief, she must therefore establish a clear right; an injury
actually committed or reasonably apprehended;
and the absence of
similar protection by any other ordinary remedy
[4]
.
Other than these hurdles, the applicant, as argued before this Court,
needs to demonstrate that the Court has the requisite jurisdiction
to
determine the application, and to thereafter satisfy the Court that
the application deserves its urgent attention.
[7]
In regards to jurisdiction, it was the respondent’s contention
that to the extent that it was contended in the applicant’s
attorneys of record correspondence of 2 December 2018 that the
suspension was unfair, the court lacked jurisdiction as she
should
have approached the SALGBC for relief.
[8]
The applicant, as I understood
her case from the founding papers and submissions made on her behalf,
relied on the unlawfulness
of her suspension, further contending that
if it were to be found that indeed the suspension was unlawful, that
would be the end
of the matter. The basis of these contentions appear
to be
Regulation 6
of the Regulations for Senior Managers 2010
[5]
.
[9]
The issue of whether
alternative available remedies are available or not ought to be
disposed of quickly. Central to the applicant’s
case is that
the suspension is unlawful. To the extent that the applicant has
disavowed any reliance on unfairness, the fact that
her attorneys of
record had in correspondence to the respondent alleged that the
suspension was unfair, is not a bar to the jurisdiction
of this
court. This Court can only determine this application in accordance
with what the applicant had pleaded. To this end, it
is trite that
the SALGBC would not have jurisdiction to decide whether the
suspension was lawful
[6]
.
Accordingly, I accept that no alternative remedy is available to the
applicant.
[10]
In regards to allegations of unlawfulness of the suspension, and to
the extent that the applicant placed reliance on the Regulations
in
contending a clear right, her further contentions were that there was
no basis for the suspension as the misconduct in question
was not
disputed, that there was no need for further investigations as the
issues were now in the public domain with investigations
having
completed, and that therefore her removal was unnecessary as there
was no rational basis under the provisions of the
Regulation 6
(1) to
continue with the suspension. On these grounds, it was submitted that
the charges which were not denied could only be used
to institute
disciplinary proceedings against her, rather than for the purposes of
a suspension.
[11]
The respondent’s contention is that the applicant has not laid
a basis for the allegation of unlawfulness, nor placed
any facts
before the court to allege and point to the existence of the right to
professional reputation (including integrity) and
dignity as she had
alleged. It was submitted that she had failed to show how such rights
have been substantively infringed by the
precautionary suspension. In
the end, it was contended that the applicant was not entitled to any
relief as she has not established
any clear rights; had not shown
that she suffered any harm or established any well-grounded
apprehension of harm.
[12]
In
MEC
for Education, North West Provincial Government v Gradwell
[7]
,
it was held that;
“
As
a general rule, a decision regarding the lawfulness of a suspension
in terms of paragraph 2.7(2) will call for a preliminary
finding on
the allegations of serious misconduct as well as a determination of
the reasonableness of the employer’s belief
that the continued
presence of the employee at the workplace might jeopardize any
investigation etc. The justifiability of a suspension
invariably
rests on the existence of a
prima
facie
reason to
believe that the employee committed serious misconduct. Only once
that has been established objectively, will it
be possible to
meaningfully engage in the second line of enquiry (the justifiability
of denying access) with the requisite measure
of conviction. The
nature, likelihood and the seriousness of the alleged misconduct will
always be relevant considerations in deciding
whether the denial of
access to the workplace was justifiable.”
[13]
Even though
Gradwell
dealt with the provisions of “Senior
Management Service Handbook” (The SMS Handbook), which applies
to senior management
in the public service, the principles enunciated
therein resonates equally in this case insofar as the suspension of
the applicant
was effected in accordance with almost similar
provisions under the Regulations.
[14]
In this case, it was not in dispute that the applicant was afforded
an opportunity to give reasons why she should not be suspended.
The
respondent having rejected her reasons, the applicant however holds
the view that the process followed in that regard was a
charade or an
academic exercise.
[15]
It has however been held that
the object of
Regulation 6
of the Regulations is to afford an
employee a hearing before the decision to suspend him or her is
taken. That object is achieved
by calling on the employee to show
cause why he or she should not be suspended pending an investigation
or disciplinary hearing
[8]
.
The mere fact that a Municipal Manager’s representations were
not accepted for the purposes of a precautionary suspension
does not
necessarily make an exercise in that regard academic, particularly in
view of the factors that the respondent took in
rejecting her
reasons, which approach is in line with that was stated in
Gradwell
.
[16]
In this case, the misconduct in question, which pertains to financial
management involving vast amounts of public money was
admitted. The
misconduct in question is serious in the extreme, and once it was
admitted, a clear case of misconduct, rather than
a
prima facie
one, has been established.
[17]
The principles that can be
extrapolated from
Lebu
v Maquassi Hills Local Municipality & others
[9]
,
and
IMATU
obo Hobe v Merafong City Local Municipality and Others
[10]
,
on which the applicant relied upon are that it is not required of a
municipality to set forth
evidence
to
show that the person involved may interfere in the conduct of the
investigation against him or herself, and that reference to
the
position of the senior official and the attendant powers and
responsibilities that he or she has, read with the allegations
of
misconduct as set out in the pre-suspension letter, should
suffice
[11]
.
Furthermore, it can further be deduced from
Hobe
that it may be necessary to suspend an employee while an
investigation is being conducted
[12]
.
In my view, to the extent that a disciplinary board was tasked with
conducting
preliminary
investigations, the implications thereof are that its conclusions and
recommendations can only be preliminary, necessitating a
further
investigation.
[18]
In line with
Gradwell
, since the misconduct in question in
this case is serious, a second line of enquiry is then necessary to
deal with the justifiability
in denying access to the workplace. The
nature, likelihood and seriousness of the alleged misconduct would be
the relevant considerations.
[19]
Flowing from the above, even if the disciplinary board had made
recommendations that there was no basis for a further investigation,
its report cannot trump over the Council’s resolution that
further investigations were still necessary. This is even moreso
where such a report given the nature of the investigations should be
regarded as preliminary.
[20]
The recommendations of the
Limpopo Provincial Government as referred to by the applicant
[13]
further adds impetus to the gravity of the matter of investments with
VBS, and the applicant’s averments that she would cooperate
for
the purposes of the disciplinary proceedings or that any further
investigation is unnecessary is small comfort given the following
observations;
20.1 The mere fact that the applicant
had admitted to the misconduct in question cannot by all accounts be
the end of the matter.
The nature of the investigation should be such
that it is important for the Municipality to get to the bottom of the
misconduct
in question, to further investigate how these lapses took
place, and to further put mechanisms in place to ensure that there is
no repeat of the misconduct. Those investigations cannot be properly
conducted with the applicant being at the workplace given
her senior
position, as she is clearly conflicted since she was the principal
accounting officer with various other officials reporting
to her, who
might also have been party to the misconduct.
20.2 What is further disconcerting in
this case is that the applicant claimed to have been not aware of the
applicable prescripts
insofar as the investments with VBS were made.
Any accounting officer in the position of a Municipal Manager ought
to be aware
of his or her financial and fiduciary obligations under
the provisions of the MFMA, the PMFA and other regulations governing
the
financial affairs of a municipality and its related entities, and
be fairly familiar with those provisions. To claim ignorance
of
the law under such circumstances can only either point to sheer
incompetence on the applicant’s part, or at worst, a complete
and wilful disregard of these prescripts, which if not checked, the
respondent might see a repeat.
20.3 If the facts of this case point
to either the applicant’s sheer incompetence or wilful
disregard of the prescripts and
dereliction of duties, how then can
it be expected of the Municipality to keep her in its employ, whilst
investigations are on-going,
with the expectation that she would be
trusted to perform her duties with due diligence and care, and be of
assistance to any investigation?
20.4 What is even more astonishing in
this case is that the applicant, by virtue of the fact that all the
investments were withdrawn
on time together with interest, seriously
and unashamedly contends that the municipality has not suffered any
prejudice. On account
of this shamelessness, the applicant deems
herself to have saved the day. The irony with her contentions is
palpable. To borrow
from the respondent’s counsel’s
analogy in this case, the applicant’s contentions are akin to a
pilot navigating
an Airbus A380 full of passengers over a densely
populated area towards an airport. The pilot, having wilfully
broken all
known aviation and navigation rules, would somehow manage
to crash-land that huge plane in a safe area without fatalities. For
the pilot to thereafter gleefully expect a standing ovation and
hero’s medal, and not be subjected to some investigation to
determine the cause of the incident, is in my view perverted and
callous. The
maxim
,
commodum ex injuria sua non habere
debet
remains apposite in such cases.
20.5 The moral of the above analogy in
this case is that the applicant is not a heroine who saved the
respondent from the VBS rot
contrary to her belief, and she should
not be a beneficiary of her own wrong-doing. Nothing should stop
further investigations
into her conduct and the impact thereof simply
because she had conceded to the misconduct, or that the respondent
recouped its
investments plus interests, or that the disciplinary
board had recommended that no further investigations were necessary.
The lack
of her appreciation of the consequences of her action in my
view makes the likelihood of any further financial misconduct on her
part more realistic, and to have her at the workplace whilst the
investigations are ongoing would not serve the purpose those
investigations were designed to achieve.
18.1 For the applicant to attempt to
regard herself as some saviour because the respondent recovered its
investments with interest
is also cruel irony. This is so in that as
things stand, from the report that is in the public domain, the whole
scheme and
modus operandi
of the VBS rot appears to have
entailed ‘
robbing Peter to pay to Paul
”. Thus, the
interests accrued to the Municipality as a result of the investments
unlawfully made, is actually money that
was literally robbed from
ordinary investors, who appeared on our national newspapers and
television screens, standing and waiting
for hours on end in queues
outside VBS Bank branches, with an expectation that they would manage
to salvage whatever little investments
they had made with that bank.
That sight and cruelty as witnessed nationally, should be engrained
in our collective memory forever,
and the perpetrators and
participants in that national tragedy, inclusive of individuals such
as the applicant, should hang their
heads in shame.
[21]
To conclude on the issue of alleged unlawfulness then,
it
is clear from the pleadings that there is still a need for thorough
investigations into how the applicant unlawfully made investments
into VBS, and in the light of the concessions made, the municipality
has not yet made a pronouncement on her guilt, and it ought
therefore
in the public interests, be allowed unhindered, to conduct whatever
investigations it seeks to conduct, with the aim
of getting to the
bottom of this tragedy.
[22]
In the light of all the above,
I am satisfied in
the circumstances that the notice of intended suspension was
sufficiently clear to have enabled the applicant
to make
representations. She made her representations which were sufficiently
considered by the respondent, and which were equally
rejected for
sound and rational reasons. There was therefore no obligation on the
Municipality to inform the applicant or to demonstrate
what other
investigations needed to be conducted or the nature of those
investigations prior to placing the applicant on suspension.
Accordingly, there can be no complaint that the suspension was
unlawful.
[23]
A final issue to be dealt with in this case pertains to urgency, it
being the applicant’s contentions that;
23.1 She was issued with her notice of
suspension on 7 December 2018, and had then approached her attorneys
of record who were unavailable.
She was only able to consult with her
attorneys from 11 December 2018, and the papers were settled the
following day.
23.2 She was suffering irreparable
harm to her professional reputation, integrity and dignity due to her
unlawful suspension, and
that the prejudice could not be cured
through a challenge to the lawfulness of her suspension in the
ordinary course, and further
that any relief that she may have will
not effectively provide her with any form of redress if not granted
now.
[24]
I accept in this case
that based on the timeline, the applicant
acted
with due diligence in coming to court, and that she did so with the
requisite degree of urgency. The mere fact however that
an applicant
approached the Court with alacrity does not however imply the Court
must of necessity regard and treat the matter
as urgent. It is more
the reasons or the facts set out in the founding papers that
determines whether the matter should receive
the urgent attention of
this court or not, within the meaning of
Rule 8
of the Rules of this
Court
[14]
,
and more particularly, whether a case for final relief has been made
out.
[25]
The respondent correctly points out that
the only averments made in the founding affidavit are to be found in
its paragraphs 49
to 50, where the urgency is relied on the alleged
irreparable harm to the applicant’s professional reputation,
integrity
and dignity, due to the alleged unlawful suspension, and
the lack of alternative remedies.
[26]
It was stated
in
Tshwaedi v Greater Louis Trichardt Transitional Council
[15]
,
that;
‘…
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…’
[27]
The applicant not having established a clear right to the extent that
it has been found that the suspension is not unlawful,
that
should ordinarily be the end of the matter. However, given the
averments made in regards to the reasons this application should
be
treated as urgent, the court is compelled to deal with this final
issue.
[28]
The applicant contends that the grounds of urgency are grounded on
the alleged irreparable harm to her professional
reputation, integrity and dignity. It should be accepted that any
suspension or
dismissal for that matter, impacts negatively on an
employees’ professional reputation, integrity and dignity. It
however
gets worse where the employee’s alleged misdemeanours
are related to public funds, or where such misdemeanours are in the
public domain, and/or where as evident from the VBS rot, the public
demands ‘retribution’. In instances however such
as in
this case, where the misdemeanours are admitted, the public hysteria
and rebuke is understandable. The court however is compelled
to look
at the facts and the law, without being influenced by extraneous
factors.
[29]
The facts of this case however do not make the
applicant’s task easier in an attempt to establish whether she
has established
harm to her reputation, integrity or dignity. In my
view, the applicant’s contentions in this case in the light of
her misdemeanours,
her lack of appreciation of the consequences of
her conduct, and the impact on ordinary people the VBS tragedy had
caused as a
result of her conduct can at best be described as
narcissistic. The effects of her conduct were not only confined to
the respondent.
As already indicated elsewhere in this judgment,
ordinary and indigent members of our communities have lost whatever
little investments
made with VBS Bank, with the expectation of
returns. The interest paid to the municipality arising from the
unlawful investments
made by the applicant, are monies that belonged
to these ordinary members of our communities as already indicated,
who were not
so lucky to recoup their investments. Even if they could
do so at some point in the future as a result of the curatorship, as
at
this point (taking into account the holiday season), they have no
dignity whatsoever to speak of, and all that they are left with
is
hope.
[30]
The applicant on the other hand despite her gross
misdemeanours, is still employed and earning a salary, until the
respondent decides
to proceed with a disciplinary enquiry against
her. For the applicant to therefore be concerned with her reputation,
integrity
or dignity in circumstances where she was a party to the
rot that befell and adversely affected ordinary members of our
communities
is indeed a cheap shot. In the result allegations of harm
to one’s reputation, integrity or dignity in the light of the
facts
and circumstances of this case can hardly serve as a basis for
the matter to be treated as urgent.
[31]
In conclusion, the applicant has not established a clear right to the
relief that she seeks. Her precautionary suspension is
not unlawful,
and it follows that her application ought to fail. I have further had
regard to the requirements of law and fairness
in regards to the
issue of costs. It is my view that this application was
ill-considered especially in circumstances where the
applicant had
conceded to the misconduct in question, and where she continues to be
placed on precautionary suspension with full
pay at the expense of
the tax payer.
[32]
In such circumstances, this Court has always lamented the fact that
well-heeled senior employees are quick to approach it with
contrived
urgent applications based on no reason other than alleged harm to
their reputation, integrity or dignity. The Court has
in the past
shown its displeasure at such abuse of its processes, and there is no
basis in law or fairness, why the tax payer must
be burdened further
with the costs of defending such ill-considered urgent applications.
Accordingly, this court should show its
similar displeasure with a
punitive cost order, and thus the following order is made;
Order:
1. The applicant’s application
is dismissed.
2. The applicant is ordered to pay the
respondent’s costs on attorney and own client scale, including
counsel’s costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: HW Sibuyi SC
Instructed
by: Mosomane Inc Attorneys
For
the Respondent: K Mosime
Instructed
by: Nkadimeng Attorneys Inc
[1]
See
Thabo
Ben Mothogoane & another v Lepelle-Nkumpi Local Municipality
Case N0: Case no: J 4115/18 (Delivered on 11 December 2018 Per
Mahosi J)
[2]
Act 32 of
2000
[3]
Section 7
(3) of the PMFA provides that;
“
.. a
municipality may not open a bank account –
(a)
Abroad
(b)
With an institution not registered as a
bank in terms of the Banks Act (Act No 94 of 1990)
(c)
Otherwise than in the name of a
municipality
[4]
See
Setlogelo v
Setlogelo
1914 AD 221
[5]
6. Precautionary suspension
(1) The municipal council may suspend
a senior manager on full pay if it is alleged that the senior
manager has committed
an act of misconduct, where the municipal
council has reason to believe that-
(a) the presence of the senior
manager at the workplace may -
(i) jeopardise any
investigation into the alleged misconduct;
(ii) endanger the
well-being or safety of any person or municipal property; or
(iii) be detrimental to
stability in the municipality; or
(b) the senior manager may-
(i) interfere with
potential witnesses; or
(ii) commit further acts of
misconduct.
(2) Before a senior manager may be
suspended, he or she must be given an opportunity to make a written
representation to the municipal
council why he or she should
not be suspended, within seven [7] days of being notified of the
council's decision to suspend
him or her.
(3) The municipal council must
consider any representation submitted to it by the senior manager
within seven [7] days.
(4) After having considered the
matters set out in subregulation (1), as well as the senior
manager's representations contemplated
in sub-regulation (2), the
municipal council may suspend the senior manager concerned.
(5) The municipal council must inform
-
(a) the senior manager in writing of
the reasons for his or her suspension on or before the date on which
the senior manager is
suspended; and
(b) the Minister and the MEC
responsible for local government in the province where such
suspension has taken place, must be notified
in writing of such
suspension and the reasons for such within a period of seven [7]
days after such suspension.
(6) (a) If a senior manager is
suspended, a disciplinary hearing must commence within three months
after the date of suspension,
failing which the suspension will
automatically lapse.
{b) The period of three months
referred to in paragraph (a) may not be extended by council.”
[6]
See
IMATU
obo Shihambi and Others v City of Ekurhuleni Metropolitan
Municipality and Others
(J1832/18) [2018] ZALCJHB 239 (6 June 2018) at para [15]
[7]
[2012] 8 BLLR 747
(LAC); (2012) 33 ILJ 2033 (LAC) at para [28]
[8]
See
IMATU
obo Hobe v Merafong City Local Municipality and Others
[2017] 10 BLLR 1040
(LC)
at
para [20]
[9]
(2012) 33
ILJ 653 (LC)
[10]
[2017] 10 BLLR 1040 (LC)
[11]
Hobe
at para
12.2
[12]
At para
[15]
[13]
At paras 65
– 57 of the Founding Affidavit
[14]
See
AMCU
v Northam Platinum Ltd
(2016) 37 ILJ 2840 (LC);
[2016] 11 BLLR 1151
(LC) at paras [21] –
[22], where it was held that;
“
What
would an applicant who seeks to make out a case of urgency then have
to show?
In
Mojaki v Ngaka Modiri Molema District Municipality and Others
,
the Court referred with approval to the following dictum from the
judgment in
East Rock Trading 7 (Pty) Ltd and Another v Eagle
Valley Granite (Pty) Ltd and Others
:
“…
. 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.”
Similarly,
Maqubela v SA Graduates Development Association and Others
dealt with the consideration of urgency 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. As Moshoana AJ
aptly put it in
Vermaak v Taung Local Municipality
:
'The consideration of the first
requirement being why is the relief necessary today and not
tomorrow, requires a court to be placed
in a position where the
court must appreciate that if it does not issue a relief as a matter
of urgency, something is likely
to happen. By way of an example if
the court were not to issue an injunction, some unlawful act is
likely to happen at a particular
stage and at a particular date.'‟
[15]
[2000] 4 BLLR 469
(LC) at para 11.