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[2019] ZALCJHB 25
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Moloto and Another v Kagisano Molopo Local Municipality and Others (J 4415/18) [2019] ZALCJHB 25 (21 February 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 4415/18
In
the matter between:
MORUFA
MOLOTO
First Applicant
OLEBILE
OBED NTSIMANE
Second
Applicant
and
KAGISANO
MOLOPO LOCAL MUNICIPALITY
OLAOTSE
THEOPHILUS BOJOSINYANE
ZEBO
TSHETLHO
First Respondent
Second
Respondent
Third
Respondent
Heard:
23 January
2019
Delivered:
21 February 2019
Summary:
Application in terms of section 18 of the Superior Courts Act to
enforce an order of the Labour Court pending appeal proceedings.
JUDGMENT
PRINSLOO,
J
Background
[1]
The First Applicant is employed as the First
Respondent’s (the Municipality) Chief Financial Officer and the
Second Applicant
is employed as Director: Corporate Support Services.
[2]
Clause 6 of the Disciplinary Regulations for
Senior Managers (the Regulations) provides for precautionary
suspension and sets out
how and under which circumstances an employee
may be suspended. Regulation 6(1) provides for precautionary
suspension in circumstances
where it is alleged that a senior manager
has committed an act of misconduct and the municipal council has
reason to believe that
the presence of the senior manager at the
workplace may jeopardise any investigation into the alleged
misconduct, may endanger
the well-being or safety of any other person
or municipal property or may be detrimental to the stability of the
municipality.
Precautionary suspension is also provided for where the
senior manager may interfere with potential witnesses or may commit
further
acts of misconduct.
[3]
The Applicants were suspended on 3 September
2018, as a precautionary suspension contemplated in Regulation
6(6)(a) of the Regulations.
The said Regulation stipulates that 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.
[4]
It is evident from the suspension letter that
the Applicants were suspended while an investigation was conducted,
as is provided
for in the Regulations.
[5]
The Applicants were served with notices to
attend a disciplinary enquiry on 19 November 2019 and the
disciplinary enquiry was scheduled
for 29 and 30 November 2018.
Attached to the notices, were the charges the Applicants were to face
at the disciplinary enquiry
scheduled for 29 and 30 November 2018. On
29 November 2018 the disciplinary enquiry did not commence on account
of the fact that
the chairperson fell ill.
[6]
On 6 December 2018, the Applicants were issued
with new notices to attend a disciplinary enquiry scheduled for 10
and 11 December
2018. The new notices embodied the same charge sheet
previously issued to the Applicants and the disciplinary enquiry was
scheduled
for 10 and 11 December 2018.
[7]
Also on 6 December 2018, the Applicants filed
an application in this Court under case number J 4415/18,
inter
alia,
challenging the
constitutionality and legality of their suspension. The application
was heard on 13 December 2018 when it was struck
off the roll for
lack of urgency. The Applicants refer to this application as the main
application.
[8]
On 19 December 2018, the Applicants filed
another application (the second urgent application) wherein they
sought limited relief
pending the finalisation of the main
application. The relief sought was for an order reinstating them
with immediate effect,
pending the main application.
Effectively the Applicants sought the upliftment of their suspension.
The Respondents indicated that
the pending disciplinary proceedings
had been postponed
sine die,
pending
the finalisation of the main application.
[9]
The basis for the application was found in the
provisions of Regulation 6(6)(a) of the Regulations, which provides
that 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.
[10]
The second urgent application was heard on 8
January 2019 and the Court per Cele J issued an order that the
Respondents are ordered
to reinstate the Applicants with immediate
effect, pending the finalisation of the main application and that
they Applicants are
to report at work within three days from 8
January 2019.
[11]
The Applicants reported for work on 11 January
2019, when they were told by the Second Respondent that they would
not be allowed
to resume their duties as the Court order of 8 January
2019 would be taken on appeal.
[12]
On 11 January 2019, the Respondents served an
application for leave to appeal against the order issued by Cele J on
the Applicants’
attorneys.
[13]
The Applicants on 16 January 2019, filed this
application and the matter was enrolled for hearing on the urgent
roll of 23 January
2019.
The
relief sought
[14]
The Applicants approached this Court on an urgent basis to reinforce
the Labour Court order
granted on 8 January 2019 and for the First
and Second Respondents (the Respondents) to be compelled to comply
with it, failing
which they would be in contempt.
[15]
This relief is sought on the basis that the order of Cele J is an
interim order and therefore
not appealable and because it is an
interim order, its operation and execution had not been stayed as a
consequence of the filing
of the application for leave to appeal.
[16]
In the alternative and in the event that this Court finds that the
order of Cele J is final
and its operation and execution had been
stayed by virtue of the filing of the application for leave to
appeal, the Applicants
seek an order wherein they are granted leave
to execute the order of Cele J, pending the determination of the
Respondents’
application for leave to appeal and any intended
appeal, should leave to appeal be granted.
Interim
or final order
[17]
The first issue to be decided is whether Cele J’s order of 8
January 2019 is an interim
or final order.
[18]
Cele J issued an order that the Respondents are
ordered to reinstate the Applicants with immediate effect, pending
the finalisation
of the main application and that they are to report
at work within three days from 8 January 2019.
[19]
The interlocutory application dealt with the
Applicants’ precautionary suspension, pending a disciplinary
hearing, on the
basis that Regulation 6(6)(a) provides that a
suspended senior manager’s disciplinary hearing must commence
within 3 months
after the date of suspension, failing which the
suspension will automatically lapse. The Applicants’ case was
that their
suspensions lapsed on 4 December 2018 and as the
disciplinary enquiry had not commenced before the expiry of the
three-month period,
they have the right to be reinstated upon the
expiry of the three-month period.
[20]
Cele J accepted the Applicants’
interpretation of the said regulation and they were reinstated. It is
evident from the Respondents’
application for leave to appeal
that Cele J’s interpretation of the word ‘commence’
as used in regulation 6(6)(a)
is the subject of the application for
leave to appeal. The Respondents’ case is that ‘commence’
should be interpreted
to mean the external manifestation of an intent
to proceed with the disciplinary process and as such the disciplinary
proceedings
against the Applicants commenced by virtue of the notices
and charge sheets that were served on them on 19 November 2018, prior
to the expiry of the three-month period.
[21]
The Applicants’ case is that the order is
an interim order as the challenge in respect of the validity of the
municipal council’s
resolution to place the Applicants on
precautionary suspension, remains the subject of the main
application.
[22]
The Respondents’ case on the other hand
is that the order granted by Cele J is final in effect,
notwithstanding the fact that
it was issued in respect of an
interlocutory application, filed separate from the main application.
This is so because the order
disposed of the municipality’s
resolution to place the employees on precautionary suspension and
because the Court interpreted
the word ‘commence’
finally.
[23]
In
determining whether an order is final, it is not merely the form of
the order that must be considered, but also and predominantly,
its
effect
[1]
.
[24]
In my view the order issued by Cele J is indeed
final in effect as it uplifted the suspension of the Applicants
pending the main
application and there remains no issue to be decided
at any future point on the upliftment of the suspension. The question
as to
whether the Applicants’ suspensions lapsed in the
instance where it was found that the disciplinary hearing had not
commenced
within the prescribed period, had been finally determined.
[25]
Having found the order to have a final effect,
the first part of the relief sought by the Applicants falls away and
needs no further
consideration. What remains to be considered is the
Applicants’ application to enforce the Court order,
notwithstanding the
application for leave to appeal filed by the
Respondents.
Point
in limine
[26]
Before dealing with the merits of this application, I have to
consider the point
in limine
raised by the Respondents.
[27]
The
Respondents submitted that as the order of Cele J is final and falls
within the ambit of section 18(1) of the
Superior
Courts Act
[2]
, the Applicants
may seek appropriate relief at the hearing of the application for
leave to appeal and the Court hearing the application
for leave to
appeal may consider the suspension of the order of 8 January 2019.
[28]
The Respondents submitted that this application
is therefore premature and ought to be dismissed and be referred to
the Court hearing
the application for leave to appeal.
[29]
The point
in
limine
so taken by the Respondents
lacks merit for a number of reasons. Firstly, section 18 of the
Superior Courts Act does not prescribe
the procedure the Respondents
want to advance as a reason why this application is premature. There
is nothing in section 18 that
stipulates when such an application
should be brought and that it should only be considered by the Court
hearing the application
for leave to appeal.
[30]
Secondly, it is certainly not the practice in
this Court that section 18 applications are only considered at the
hearing of the
application for leave to appeal and that only the
Court dealing with the application for leave to appeal, may consider
the section
18 application.
[31]
Lastly, the Respondents submitted that the
application ought to be dismissed and referred to the Court hearing
the application for
leave to appeal. It is not my understanding that
a dismissed application could be considered by another Court, except
on appeal.
The notion to ‘dismiss’ and thereafter ‘refer’
the same application to another Court is an impossible one.
[32]
There is no merit in the Respondents’
point
in limine
and
as such it has to fail.
The
applicable principles:
[33]
Section 18 of the Superior Courts Act regulates
the circumstances under which a party may apply for an order that
departs from the
ordinary consequence of filing an application for
leave to appeal.
The default position is
that ‘the operation and execution of a decision which is the
subject of an application for leave to
appeal is suspended pending
the decision of the application or appeal’.
[34]
The provisions of section 18 of the Superior
Courts Act apply to the proceedings of this Court.
[35]
In
general terms the operation and execution of a decision (other than a
decision not having the effect of a final judgment) is
suspended
pending the outcome of an application for leave to appeal or appeal.
The court may however order otherwise if it is established
on a
balance of probabilities that the applicant will suffer irreparable
harm if the court does not so order, and that the other
party will
not suffer irreparable harm if the court so orders
[3]
.
[36]
Section 18 of the Superior Courts Act provides
that:
‘
18
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and
unless the court under exceptional circumstances orders otherwise,
the operation and execution
of a decision which is the subject of an
application for leave to appeal or of an appeal, is suspended pending
the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court
under exceptional circumstances orders otherwise, the operation and
execution of a decision
that is an interlocutory order not having the
effect of a final judgment, which is the subject of an application
for leave to appeal
or of an appeal, is not suspended pending the
decision of the application or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party
who applied to the court to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable
harm if the court does not so order and that the
other party will not suffer irreparable harm if the court so orders.
(4)
If a court orders otherwise, as contemplated in subsection (1) —
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next
highest court;
(iii)
the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5)
For the purposes of subsections
(1) and (2), a decision becomes the subject of an application
for
leave to appeal or of an appeal, as soon as an application for leave
to appeal or a notice of appeal is lodged with the registrar
in terms
of the rules.’
[37]
The provisions of section 18 of the Superior Courts Act introduced a
two-fold test of which
the requirements call for an enquiry firstly
as to whether ‘exceptional circumstances’ exist and
secondly whether the
applicant showed the presence and the absence of
irreparable harm on a balance of probabilities.
[38]
The Applicant must prove on a balance of probabilities that it will
suffer irreparable
harm should the order for leave to execute or
enforce not be granted pending the appeal and that the respondent,
who seeks leave
to appeal, will not suffer irreparable harm if leave
to execute is granted pending appeal.
Analysis
[39]
The question is whether or
not a proper case has been made out to grant leave to put the order
issued by Cele J on 8 January 2019
into operation pending an appeal
process.
Exceptional
circumstances
[40]
The first issue to be decided is whether there
are exceptional circumstances.
[41]
The Applicants’ case is that exceptional circumstances exist
for the enforcement
and execution of the order of Cele J pending the
Respondents’ application for leave to appeal or any consequent
appeal to
the Labour Appeal Court (LAC). The exceptional
circumstances set out by the Applicants are as follows: the relief
granted is time-sensitive,
they stand to suffer financial prejudice
in relation to their right to qualify for a performance bonus, which
cannot be quantified
in their absence, the effect of an appeal
process negates the relief they were granted and renders it academic
and lastly they
remain suspended, a position that will remain for a
protracted period.
[42]
It is evident
that in the papers before me the issues of exceptional circumstances
and irreparable harm are intertwined and the
papers are certainly not
a model of clarity and are by no means a showcase of drafting skills.
[43]
Be that as it may, in the opposing affidavit, the Respondents denied
that the Applicants
showed any exceptional grounds why the order of
Cele J ought not to be suspended pending the application for leave to
appeal.
[44]
What
constitutes ‘exceptional circumstances’ had been
considered in
Incubeta
Holdings (Pty) Ltd and another v Ellis and Another
[4]
and
the Court held that exceptionality must be fact-specific and
circumstances
which are or may be ‘exceptional’ must be derived from
the actual predicaments in which the given litigants
find themselves.
The Court held that:
In
my view the predicament of being left with no relief, regardless of
the outcome of an appeal, constitutes exceptional circumstances
which
warrant a consideration of putting the order into operation. The
forfeiture of substantive relief because of procedural delays,
even
if not protracted in bad faith by a litigant, ought to be sufficient
to cross the threshold of ‘exceptional circumstances’
[45]
Incubeta
[5]
has
been quoted with approval by the Supreme Court of Appeal (SCA)
[6]
and it is clear that the determination of whether exceptional
circumstances exist, is a fact specific enquiry and each case has
to
be decided on its own facts as there is no definition of exceptional
circumstances.
[46]
It is evident from the opposing affidavit that the Respondents did
not dispute the Applicants’
averments that the relief granted
is time-sensitive, that the effect of an appeal process negates the
relief that they were granted
and that they remain will suspended for
a protracted period. It was also not disputed that the Applicants
have the right to qualify
for a performance bonus in terms of their
applicable performance agreements and conditions of employment
Regulations.
[47]
The
Applicants’ suspension was uplifted and for the suspension to
remain in place, pending the finalisation of the appeal
or the main
application, will indeed create the predicament of being left with no
relief in circumstances where it is undisputed
that the relief
granted is time-sensitive.
Incubeta
[7]
has
held this to be sufficient to cross the threshold of exceptional
circumstances and I cannot see any reason why the same principle
does
not apply
in
casu.
Irreparable
harm
[48]
I turn to deal with the
second leg of the enquiry: ‘irreparable harm’.
[49]
It is trite that the Applicants must prove on a balance of
probabilities that they will
suffer irreparable harm should the order
for leave to execute or enforce not be granted pending the appeal and
that the Respondents
will not suffer irreparable harm if leave to
execute is granted pending the appeal.
[50]
I have already alluded to the fact that the papers before me are no
example of proper drafting
and even on the aspect of irreparable
harm, I had difficulty to find the Applicants’ averments in
support thereof. I however
accept that the Applicants’ case is
presented on the basis that the issues are intertwined.
[51]
The Applicants referred to the prejudice they stand to suffer, when
in fact they have to
convince this Court that they will suffer
irreparable harm. Be that as it may, the Applicants placed reliance
on the same factors
already alluded to
supra
in support of
their contention that they will be prejudiced if the order is not
granted.
[52]
The factors as presented by the Applicants and not disputed by the
Respondents, which I
consider relevant in respect of harm or
prejudice are that they will remain suspended for a protracted period
and that they have
the right to qualify for a performance bonus in
terms of their applicable performance agreements and conditions of
employment Regulations.
[53]
In the opposing affidavit, the Respondents denied that the Applicants
stand to suffer financial
prejudice as they have been on
precautionary suspension with pay from the onset. Issue is taken with
the Applicants’ failure
to show that their expectation that
they would qualify for a performance bonus, is reasonable and that
they failed to address the
issue as to why they cannot later claim
damages in relation to their inability to qualify for performance
bonusses. To this, the
Applicants responded that it would be
impossible to quantify a claim for damages in relation to a
performance bonus as the right
to qualify for the performance bonus,
is dependent on their presence at the workplace.
[54]
Mr Hugo, on behalf of the Respondents, submitted that the Applicants
provided no specifics
as to their entitlement to performance bonuses
and the statements relating to performance bonusses are empty
statements. This is
so because the Applicants did not state whether
they previously qualified for such bonusses, whether there is any
reasonable prospect
that they may in future qualify or what criteria
or the value of the bonus is.
[55]
In my view, the Respondents missed the point in respect of the issue
of financial prejudice
raised by the Applicants.
[56]
The arguments submitted on behalf of the Respondents indicate an
understanding that the
Applicants are claiming a performance bonus
and in the Respondents’ view, this is a claim that could be
quantified and pursued
as a separate claim for damages. That is
however not the Applicants’ case. Their case is that they stand
to suffer financial
prejudice in relation to their right to qualify
for a performance bonus, which cannot be quantified in their absence.
The issue
is the right to qualify for a bonus and not the payment of
the bonus
per se.
[57]
Absent from work, the Applicants cannot access the right to qualify
for a performance bonus
and protracted absence will indeed cause
irreparable harm in this regard, more so where the claim cannot be
quantified and pursued
as a claim for damages
[58]
Furthermore, the Applicants’ contention that pending the appeal
process, they will
remain suspended for a protracted period is
another factor that calls for closer examination.
[59]
This is so in view of the fact that in
the
suspension letter of 3 September 2018, it was specifically stated and
made clear that the Applicants were suspended from work
while an
investigation was conducted into the allegations raised in the letter
of intention to suspend. It is significant that
in the suspension
letter the Respondents recorded that ‘
The
Municipal Council will not keep you suspended for longer than is
necessary for it to carry out the investigation and decide
on action
to be taken…’.
[60]
Evidently, the Applicants were suspended while
an investigation was conducted, as is provided for in the
Regulations. It was precautionary
to allow the investigation to be
conducted and for the municipality to decide on the action to be
taken.
[61]
It is safe to assume that on 19 November 2018,
when the Applicants were served with notices to attend a disciplinary
enquiry and
attached to the notices, were the charges the Applicants
were to face at the disciplinary enquiry, the investigation was
completed
and the municipality had taken a decision on the action to
be taken. Surely the investigation informed the formulation of the
charges
and the decision that the action to be taken was to charge
the Applicants with misconduct and to follow a disciplinary process.
[62]
The Applicants’ suspension was
precautionary and I fail to see why they should remain suspended
indefinitely when their suspension,
from the onset, was precautionary
‘
to carry out the investigation
and decide on action to be taken.’
[63]
I am satisfied that the Applicants will
suffer irreparable harm.
This is however not the end of the
enquiry. The Applicants must also prove on a balance of probabilities
that the Respondents will
not suffer irreparable harm if leave to
execute is granted pending an appeal process.
[64]
The Applicants’ case is that the
Respondents will not suffer irreparable harm and this is so because
in the affidavit, filed
in opposition of the application that was
heard by Cele J, the Respondents stated that the fact that the
Applicants remain on precautionary
suspension, pending the
finalisation of their disciplinary hearing, prejudices the
municipality as the financial obligation to
pay them, remains and
their workload has to be performed by other employees.
[65]
In answer to this, the Respondents did not deny the fact that they
are prejudiced by the
financial burden to pay the Applicants and the
fact that other employees have to carry their workload. Instead, they
did no more
than to refer this Court to a timeline of events since
August 2018 and to submit that the Applicants’ suspensions
remain
valid.
[66]
I have already alluded to the fact that the suspension letters issued
to the Applicants,
did not suspend them pending finalisation of the
disciplinary hearing, but pending the finalisation of an
investigation.
[67]
The Respondents submitted that the Applicants stand to answer
serious allegations
in a disciplinary process and they do not want to
proceed with such a process, hence they filed the main application.
This is disputed
by the Applicants who indicated that they are
prepared to participate in any lawful disciplinary process.
[68]
In view of the aforesaid, I am not convinced that the Respondents
will suffer irreparable
harm in circumstances where they will have
the benefit of the services rendered by the Applicants, which will
eliminate the prejudice
caused by paying employees who render no
service and which will alleviate the increased workload of the
employees who have to perform
the Applicants’ duties in their
absence.
[69]
In conclusion: it is evident
from the circumstances
supra
,
that the Applicants would indeed suffer irreparable harm if the order
of Cele J is not put into operation and that the Respondents
will not
suffer irreparable harm if the order is put into operation. The
section 18 test is met on both counts of the second leg.
[70]
It follows that all the
requirements under sections 18(1) and (3) of the Superior Courts Act
have been satisfied.
[71]
Although the disciplinary proceedings are not
an issue before me, it had been mentioned in the affidavits and on
the facts placed
before me, I fail to see the reason why the
disciplinary proceedings had been stayed until the finalisation of
the main application.
It is certainly in the interest of all the
parties that the disciplinary proceedings commence and that the
Applicants be afforded
their right to be heard and to put up a case
in response to the allegations levelled against them. Any further
delay in finalising
the disciplinary enquiry is not in the interest
of the parties, fairness or justice.
Costs
[72]
The last issue to be decided is the issue of
costs.
[73]
Insofar
as costs are concerned, this Court has a broad discretion in terms of
section 162 of the Labour Relations Act
[8]
(LRA0 to make orders for costs according to the requirements of the
law and fairness.
[74]
The Applicants claim that they are entitled to
punitive costs because the Respondents should have known that the
order of Cele J
is not an appealable order, alternatively that the
leave to appeal does not stay the execution and enforcement of the
order. Furthermore,
the application for leave to appeal was launched
with the sole aim of preventing the Applicants from returning to work
and that
the Respondents will in all likelihood not pursue the
appeal.
[75]
There is no merit in these submissions. I have
already dealt with the fact that the order issued by Cele J is
appealable and the
submission that the Respondents will not pursue
their appeal, is nothing but speculation and by no stretch of the
imagination can
mere speculation constitute justification for a
punitive cost order.
[76]
The
Constitutional Court in
Zungu
v Premier of Kwazulu-Natal and Others
[9]
has
recently confirmed that the rule of practice that costs follow the
result does not apply in labour matters, but that the Court
should
seek to strike a fair balance between unduly discouraging parties
from approaching the Labour Court and have their disputes
dealt with
and, on the other hand allowing those parties to bring to this Court
cases that should not have been brought to Court
in the first place.
[77]
In my view this is a matter where the interests of justice and
fairness will be best served
by making no order as to costs. The
Respondents have the right to file an appeal to the LAC and the
exercising of that right made
this application necessary. The
Respondents acted within their rights to oppose this application and
should not be punished with
a cost order for doing so.
[78]
Accordingly, I
make an order as follows:
Order
1.
The Labour
Court order granted on 8 January 2019 under case number J 4415/18
operates and is extant until the final determination
of all leave to
appeal applications and appeals against the said order;
2.
The First and
the Second Respondents are ordered to comply with the Labour Court
order handed down on 8 January 2019 within 24 hours
of this order
being granted;
3.
There is no order as to costs.
___________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr W P Scholtz from Scholtz Attorneys
For
the First and Second
Respondents:
Advocate M Hugo
Instructed
by:
Shuping Attorneys
[1]
Cronshaw
v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
1996
(3) SA 686
(A) at 690 E-F.
[2]
Act
10 of 2013
[3]
Luxor
Paints (Pty) Ltd v Lloyd and Another
(2017)
38 ILJ 1149 (LC).
[4]
2014
(3) SA 189
(GJ)
at para 27.
[5]
Ibid.
[6]
See:
Ntlemeza
v Helen Suzman Foundation and Another
2017
(5) SA 402
(SCA),
University
of the Free State v Afriforum and Another
2018
(3) SA 428.
[7]
Id
n
4.
[8]
Act 66 of 1995 as amended.
[9]
(2018) 39 ILJ 523 (CC).