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[2018] ZALCD 13
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Hadebe v Msunduzi Municipality (D1558/18) [2018] ZALCD 13 (17 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D1558/18
In
the matter between:
SIZWE
HADEBE
Applicant
and
MSUNDUZI
MUNICIPALITY
Respondent
Heard:
15 August 2018
Delivered:
17 August 2018
Summary:
Urgent application. Precautionary suspension.
JUDGMENT
GUSH, J
[1]
The
applicant in this matter applied as a matter of urgency for a
rule
nisi
to be issued calling on the respondents to show cause why:
1.
The
suspension of the applicant effected on 2 August 2018 should not be
declared unlawful and be set aside;
2.
The
applicant should not be reinstated as municipal manager with
immediate effect; and
3.
Costs.
[2]
This
relief was to operate with immediate effect pending the outcome of
this application.
[3]
The
matter was first brought before Cele, J and was adjourned to 15
August 2018 to enable the respondent to file an answering affidavit.
No interim relief was granted.
[4]
It
was my understanding that the parties were
at
idem
that not only was it unnecessary to deal with the interim relief
pending a return date, but that the Court was to consider at this
stage only the issue of urgency.
[5]
In
particular, the parties agreed that the Court was to determine
whether the suspension was unlawful or not. If the suspension
was
unlawful then the application was to be considered urgent and the
applicant would be entitled to relief
viz
:
that the suspension should be set aside; alternatively, if the
suspension was not unlawful the application was not urgent and
fell
to be struck off the roll.
[6]
The
suspension of the applicant was given effect to on 2 August 2018. The
respondent’s had resolved, as a precautionary measure,
to
suspend the applicant was for the purpose of completing the
investigation. The reason for the suspension was that the respondent
believed,
inter
alia
,
the applicant may, if not suspended, interfere with the investigation
or interfere with witnesses. The investigator had been granted
a
three-week extension to complete the investigation. It was
accordingly apparent that the precautionary suspension was likewise
for a period of three weeks which will expire on 23 August 2018.
[7]
Mr De
Wet, who appeared for the applicant argued that the respondent had
not complied with regulation 6 of the Local Government:
Disciplinary
Regulations for Senior Managers, 2010, and therefore the suspension
was unlawful for non-compliance. The regulation
is headed
‘Precautionary Suspension’ and provides:
‘
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)
jeopardize any investigation into the alleged misconduct;
(ii)
in danger 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 written representations 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 to consider the matter set out in sub-regulation (1), as well
as the senior manager’s representations contemplated
in sub-
regulation (2), the municipal Council may suspend the senior manager
concerned.
[1]
[8]
The
primary purpose and function of this regulation is to provide
municipal Council with the authority to suspend a senior manager.
In
applying this regulation, the municipal Council must comply with two
requirements:
8.1 The first is that
there must be an allegation that the senior manager has committed an
act of misconduct;
8.2
The
second is that the municipal Council must have reason to believe, in
general terms that the presence of the senior manager at
the
workplace may jeopardize the investigation, interfere with potential
witnesses or be detrimental to the stability of the municipality.
[9]
Mr De
Wet referred to a number of judgments of this Court in which it had
been held that in general an employee should be given
sufficient
particularity of the misconduct and sufficient reasons why suspension
is deemed necessary to allow the employee to respond
to the decision
to potentially suspend him. I have considered these judgments and I
am satisfied that whilst they prescribe a general
rule, it is however
necessary that the Court must take into account the specific
circumstances of each case in order to determine
whether there has
been compliance with the regulations and accordingly whether or not
the suspension is unlawful.
[10]
It is
apparent from the pleadings in this matter that firstly the
investigation being conducted in terms of the disciplinary
regulations
had not been completed. Secondly as a result it is clear
that neither the investigator nor the municipal Council have reached
any
final decision as to the specifics of any alleged misconduct.
[11]
In
this matter the suspension is unquestionably not punitive but merely
to allow the investigator to complete the investigation
unhindered
and it is therefore precautionary in nature. It is apparent that the
duration of the suspension is linked to the extension
of the
investigation and is of limited duration.
[12]
It is
clear from the provisions of the disciplinary regulations that a
municipal Council may only charge a senior manager after
receipt of
the investigation report and recommendations by the investigator; the
report and recommendations are to be tabled before
the municipal
Council according to a timeframe; and in deciding to institute
disciplinary proceedings against the senior manager
it must determine
whether the misconduct is serious or “less serious”.
[13]
That
being so, in this matter, the specifics of any possible charge of
misconduct have not been determined. The investigation is
ongoing.
The provisions of regulation 6 specifically titled “precautionary
suspension” appears to be designed to facilitate,
where the
investigation is incomplete, the completion of such investigation.
The authority to suspend is therefore dependent upon
whether “
the
respondent [municipal Council] has reason to believe that
”
the presence of the applicant at the workplace may jeopardize the
investigation into the alleged misconduct; is detrimental
to
stability in the workplace and that the applicant may interfere with
potential witnesses.
[14]
It is
clear from the pleadings that the respondent by virtue of a letter
dated 24 July 2018 issued the applicant with a notice of
the intended
precautionary suspension. The notice advised the applicant that the
municipal Council had resolved to invite him to
make representations
as to why he should not be placed on precautionary suspension. The
notice in this regard specifically provided:
‘
In
your position as municipal manager, you occupy a strategic position
in the workplace and, as such, have access to sensitive
documentation, including documentation that is required for the
investigation. You also in a position where you may well be able
to
influence employees for interfere with potential witnesses. In
addition, you are well aware that the prevailing atmosphere the
workplace is tense and, consequently, your continued presence at the
workplace may jeopardize the ability of the investigator to
conduct
the investigation freely and unhindered.’
[2]
[15]
Nothing
could be clearer. The respondent has explained in more than
sufficient detail the reasons why it believes that the applicant
should be suspended as a precautionary measure pending the outcome of
the investigation.
[16]
On 2
August 2018 when the respondent issued the “Notice of
Precautionary Suspension of the City Manager” the mayor who
signed the letter again set out in paragraph three of that letter,
the respondent’s reasons for imposing the precautionary
suspension.
[17]
The
gist of the applicant’s submissions regarding the proposed
precautionary suspension appears to be a suggestion that he
has not
interfered with the investigation or potential witnesses in the past
and therefore he should not be suspended. The regulation
does not
require that the senior manager should have been guilty of such
interference in order to allow the municipal Council to
suspend. It
simply provides that where the municipal Council has reason to
believe that this will happen it may suspend. There
is nothing to
gainsay the averment made by the author of the suspension letter [the
mayor] that the respondent had carefully considered
the applicant’s
written representations.
[18]
I am
accordingly satisfied that the respondent has clearly set out the
reasons why it believes that the presence of the applicant
may
jeopardize the investigation.
[19]
Mr De
Wet argued that the fact that the applicant had listed the provisions
of regulation 6(a) (i) (iii) and (b) (i) rendered the
decision
unlawful in that it simply paraphrased the regulation and that these
are mere conclusions. This ignores the fact that
the respondent has
specified reasons that stand apart from the conclusions and the
recordal of the provisions of the regulation
as set out in the
Disciplinary Regulations
viz
.
that, given the applicants seniority, the applicant’s presence
at the workplace may jeopardize the investigation or that
he may
interfere with potential witnesses. This is not unreasonable.
[20]
Mr De
Wet also argued that the notice of the intended precautionary
suspension does not set out in sufficient particularity the
nature of
the misconduct and is therefore unlawful. In order to determine
whether or not the notice is in compliance with the requirements
of
regulation 6 it is necessary to consider the surrounding
circumstances.
[21]
It is
clear from the pleadings that the investigation, that is regulated by
the same regulations, was not complete nor had the investigator
made
any recommendation. The municipal Council had not yet decided whether
the applicant was in fact guilty of misconduct, or if
so whether such
misconduct was “of a serious or less serious nature”.
[22]
I am
satisfied in the circumstances that the notice of intended suspension
is sufficiently clear to have enabled the applicant to
make
representations, as he did. These representations were considered by
the respondent.
[23]
The
purpose of the suspension was not, as is often the case, for the
purposes of proceeding with a disciplinary enquiry into specific
acts
of misconduct. No decision had been made regarding any charges of
misconduct. The purpose of the suspension was simply to
facilitate
the completion of the investigation.
[24]
I am
therefor not persuaded that the suspension was unlawful or that the
respondent did not substantially comply with the requirements
of the
disciplinary regulations.
[25]
As
regards to costs; both parties argued that costs should follow the
result and that costs should include the costs of two counsel.
Mr De
Wet was assisted by his instructing attorney.
[26]
Accordingly,
and for the reasons set out above I make the following order:
Order
1.
The
applicant’s application is struck off the roll for want of
urgency;
2.
The
applicant is ordered to pay respondents costs such costs to include
the costs of two counsel.
D H Gush
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant:
Advocate. A De Wet assisted by S Nzimande
Instructed by: S Nzimande
Inc.
For the Respondent:
Advocate. M Pillemer assisted by L Naidoo
Instructed
by Mdledle Inc
[1]
Government Notice
No. 344 21 April 2011.
[2]
Annexure SH1 page
19.