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[2019] ZALCJHB 111
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Emalahleni Local Municipality v Sibanyoni NO and Another (JR548/2018) [2019] ZALCJHB 111 (17 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 548/2018
EMALAHLENI
LOCAL MUNICIPALITY
Applicant
and
MONTY
SIBANYONI N.O
First
Respondent
MARVELLOUS
B SHONGWE Second
Respondent
Heard:
7 May 2019
Delivered:
17 May 2019
Summary:
Application to review outcome of an internal disciplinary hearing.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
In this application, the Applicant seeks an order
reviewing and setting aside the outcome of a disciplinary hearing
insofar as it
relates to the sanction and for the substitution of the
sanction with an order dismissing the Second Respondent (the
Respondent).
[2]
The application for review was filed on 10 April
2018 and it was served personally on the Respondent on the same date.
It was also
served on SAMWU, that represented the Respondent during
the disciplinary proceedings. On 20 June 2018 the transcribed record
was
served on the Respondent personally.
[3]
On 18 July 2018, the Applicant filed a
supplementary affidavit, which was also served on the Respondent. The
Respondent had not
filed a notice of intention to oppose or an
opposing affidavit and on 10 December 2018, the Applicant filed a
notice in terms of
Rule 22B of the Rules of the Labour Court to enrol
the matter for hearing on the unopposed motion Court roll.
[4]
The Rule 22B notice was served on the Respondent
and SAMWU on 10 December 2018.
[5]
The matter was enrolled for hearing on the
unopposed motion Court roll of 7 May 2019. At the commencement of the
hearing, Mr Phiri
of SAMWU requested that the matter be postponed in
order for the Respondent to formally oppose the application.
[6]
Mr Mokgotho on behalf of the Applicant opposed
the request for a postponement.
[7]
I canvassed with Mr Phiri as to what was the
reason for the late request to postpone the matter as well as
the basis for such
a postponement in circumstances where the papers
were properly served on SAMWU but no notice of intention to oppose,
let alone
any opposing papers were filed. In short; Mr Phiri had to
convince this Court that there was a valid reason why a notice of
intention
to oppose was not filed and why a postponement should be
granted at this late stage.
[8]
Mr Phiri submitted that the reason why no
opposition was entered and why the Respondent should at this late
stage be granted a postponement
in order to oppose the application,
was because the legal team who handled the matter was suspended. Mr
Phiri provided me with
a letter of suspension, in support of his
argument that the legal team who assisted the Respondent was
suspended and that for that
reason, the application was not opposed.
It is evident from the letter of suspension that Mr Phiri handed up,
that one Mr A Nthako
was informed on 26 April 2019 that his
suspension would be effective from 2 May 2019.
[9]
The letter of suspension was of no assistance to
the Respondent. This review application was served on the Respondent
on 10 April
2018. It was also served on SAMWU. On 20 June 2018, the
transcribed record was served on the Respondent personally. A
supplementary
affidavit was served on the Respondent on 18 July 2018.
On 10 December 2018, the Applicant filed a notice in terms of Rule
22B
to enrol the matter for hearing on the unopposed motion Court
roll, which notice was served on the Respondent and SAMWU on 10
December
2018.
[10]
It is evident from the Court file that the
Respondent was notified about the set down of the matter on 14 March
2019. If the now
suspended Mr Nthako was the union official
responsible for the Respondent’s case, his suspension only took
effect on 2 May
2019, more than one year after this application was
served and filed and almost five months after the Rule 22B notice was
served.
[11]
Having considered the application for
postponement and the submissions made in opposition thereof, I
refused the request to postpone
the matter. There was simply no
convincing reason presented to me as to why the matter should be
postponed at the eleventh hour.
It was evident that the Respondent
and SAMWU were aware of this application as early as April 2018, but
did nothing for more than
a year to oppose the matter and when the
matter was set down for argument, presented nothing but an
unacceptable reason to postpone
the matter.
[12]
I have considered the prejudice to be suffered by
the Applicant should a postponement be granted and in view of the
nature of this
application, I am satisfied that the Applicant would
be severely prejudiced should the matter be postponed. I will fully
deal with
the nature of the application
infra
.
Suffice to say that the Applicant will be unduly prejudiced in
circumstances where it had to wait for a Court date for a period
of
more than one year, and should the matter be postponed, the Applicant
will have to wait for another year or more to have the
matter
adjudicated in circumstances where the Applicant seeks to review and
set aside the outcome of an internal disciplinary hearing.
[13]
The application for postponement was refused and
the matter proceeded on an unopposed basis.
Background
facts
[14]
The Applicant employed the Respondent on 1 June
2014 as an Assistant Manager: Public Facility Maintenance, Roads and
Storm Water
in the Municipality’s Technical Services
Department.
[15]
On 22 November 2017, the Respondent was charged
with five counts of misconduct and an internal disciplinary hearing,
chaired by
the First Respondent (the chairperson), was held on 28
November, 4 December 2017, and 17 and 23 January 2018. The Respondent
was
found guilty on charges 1 and 2.
[16]
Mr Phiri as the Respondent’s representative
made submissions in mitigation and the Applicant made submissions in
aggravation
for purposes of the imposition of an appropriate
sanction.
[17]
On 21 February 2018, the chairperson issued a
‘disciplinary outcome report’ wherein he imposed the
sanction of demotion
to a position one level below that of Assistant
Manager.
[18]
It is this sanction of demotion that the
Applicant seeks to review and set aside.
The
disciplinary proceedings:
[19]
The Respondent was found guilty on the following
two charges.
‘
Charge
1:
You
are alleged to be guilty of breaching Schedule 2, Item 2(a) of the
Municipal Systems Act 32 of 2000 in that:
It is alleged that during the week 30
May 2016 to 4 June 2016 you failed to loyally execute the lawful
policies of the Municipality
when you instructed Council employees to
work for a contractor and wilfully endangered their safety.
Charge 2:
You are alleged to be guilty of
breaching Schedule 2, Item 2(d) of the Municipal Systems Act 32 of
2000 in that:
It is alleged that you have failed to
act in the best interest of the Municipality and in such a way that
the credibility and integrity
of the Municipality are not compromised
when you colluded with business companies that have a direct interest
in the projects that
you were managing’.
[20]
In the outcome report, the chairperson analysed
the evidence and found that there was no doubt that a mutually
beneficial relationship
existed between the Respondent and one Mr
Mashigo, the owner of Shaya company that was contracted by the
Municipality to patch
potholes and clean catch pits. At the centre of
this issue was the awarding of Municipal contracts and the payment of
kickbacks.
[21]
The chairperson further found that one Mothapo
and Mashiloane both used Municipal equipment to assist a contractor
in a project
to patch potholes around Duvha. He held that it was
never disputed that the Respondent was responsible and accountable
for the
projects and his failure to discipline Mothapo made him
complicit in the abuse of Municipal resources and for that, he should
be
held accountable.
[22]
The chairperson found that the Respondent
instructed his subordinate, Zimu, to sign a completion certificate
for an incomplete project
assigned to Mabakazi, in which the
Respondent had a vested interest and this conduct amounted to an
abuse of authority and corruption.
The contractor was indeed paid for
incomplete work and the chairperson found that the Respondent
manipulated the working procedures
and his subordinates by colluding
with contractors for his own selfish ends.
[23]
In conclusion, the chairperson found that the
Respondent was ‘hell bent in furthering his interests acting in
cahoots with
contractors’ and that his conduct indeed amounted
to an act of collusion.
[24]
The Applicant presented submissions in
aggravation to the effect that the employment relationship has broken
down due to the gravity
of the misconduct and the fact that the
misconduct the Respondent was found guilty of, related to collusion,
corruption, abuse
of authority and overall had an element of
dishonesty. The Applicant’s case was that the misconduct was
serious and that
the relationship had broken down to the extent that
dismissal was justified. A further aggravating factor was that the
Respondent
occupied a senior position, he was entrusted with
contracts worth hundreds of thousands of Rands and the person
occupying his position,
must be trusted to deal with the contracts
and contractors, which was in the Respondent’s case, no longer
possible.
[25]
The Applicant submitted that dismissal was the
only appropriate sanction in circumstances where the Respondent could
no longer be
trusted because of fraud, collusion and gross
dishonesty.
[26]
The Respondent made submissions in mitigation to
the effect that he does not have any previous record of misconduct,
he is an ‘academic
person’ and therefore a great asset to
the Municipality and he is the only breadwinner and father of four
children who depend
on him. In addition, the Respondent made factual
submissions in response or in defence to every finding made by the
chairperson.
The Respondent submitted that a written warning would be
an appropriate sanction.
[27]
The chairperson held that after careful
consideration of the aggravating and mitigating factors, demotion is
an appropriate sanction.
Analysis:
The grounds for review
[28]
In the founding affidavit, the Applicant raised
two grounds for review and a third ground was raised in the
supplementary affidavit.
In argument, Mr Mokgotho abandoned the third
ground for review and the Applicant persisted only with the grounds
for review as
set out in the founding affidavit. Although the
Applicant described two grounds for review in the founding affidavit,
it is evident
that there is in fact only one ground for review raised
in respect of the two charges the Respondent was found guilty of.
[29]
The review
application is brought in terms of section 158(1)(h) of the Labour
Relations Act
[1]
(LRA) and in
terms of the principle of legality. The application is limited in the
sense that it only seeks the review and setting
aside of the sanction
imposed by the chairperson.
[30]
Section 158 (1)(h) of the LRA grants this Court
the power to review any decision taken or any act performed by the
State in its
capacity as employer, on such grounds as are permissible
in law.
[31]
In
Hendricks
v Overstrand Municipality and Another
[2]
,
the
Labour Appeal Court (LAC) considered the interpretation of section
158(1)(h) of the LRA and held that:
‘
In
sum therefore, the Labour Court has the power under section 158(1)(h)
to review the decision taken by a presiding officer of
a disciplinary
hearing on i) the grounds listed in PAJA, provided the decision
constitutes administrative action; ii) in terms
of the common law in
relation to domestic or contractual disciplinary proceedings; or iii)
in accordance with the requirements
of the constitutional principle
of legality, such being grounds “permissible in law”.
[32]
The LAC thus confirmed that
a
determination by a presiding officer in the public sector is
reviewable on grounds listed in PAJA, common law and the principle
of
legality.
In
casu,
the
Applicant approached this Court on the principle of legality. There
is no fixed list of requirements of the principle of legality,
but is
has been held to include
inter
alia,
rationality.
[33]
Rationality
was defined by Hoexter
[3]
as
follows:
‘
[t]his means in essence that a
decision must be supported by the evidence and information before the
administrator as well as the
reasons given for it. It must also be
objectively capable of furthering the purpose for which the power was
given and for which
the decision was purportedly taken.’
[34]
The Applicant’s ground for review is that
the sanction of demotion imposed in respect of charge 1 and 2 is
irrational, unreasonable
and inappropriate.
[35]
This is so for a number of reasons. Firstly, in
respect of charges 1 and 2 the chairperson found that the
Respondent’s conduct
amounted to an abuse of authority,
corruption and that he manipulated working procedures and
subordinates by colluding with contractors
for his own selfish ends.
In essence, the Respondent was found guilty of abuse of authority,
corruption and collusion.
[36]
The Applicant’s case is that acts of
corruption and collusion do not only constitute serious misconduct,
but are also criminal
offences and in view of the seriousness of the
misconduct the Respondent was found guilty of, demotion is not an
appropriate sanction.
[37]
Secondly, in his submissions for mitigation, the
Respondent, notwithstanding the evidence and the guilty finding
against him, maintained
his innocence and continued to defend the
charges. The Applicant’s case is that this is indicative of the
fact that he is
unable to acknowledge his wrongdoing, to accept
responsibility for his actions and to show remorse, which in turn
shows that the
Respondent’s rehabilitation is unlikely.
[38]
The Applicant’s case is that demotion is
not an appropriate sanction in circumstances where an employee has
been found guilty
of serious misconduct and rehabilitation is
unlikely, as it is in the Respondent’s case.
[39]
Thirdly, in the Applicant’s submissions in
aggravation, it submitted that the employment relationship has broken
down beyond
repair and that a continued relationship with the
Respondent was intolerable in view of the nature of the misconduct
and the seriousness
of the charges he was found guilty of. The
Applicant made it clear that it was unable to trust the Respondent to
carry out the
duties attached to the position he held.
[40]
The Applicant’s case is that had the
chairperson taken into consideration the seriousness of the
misconduct the Respondent
was found guilty of and the fact that the
trust relationship had broken down, he could not have imposed a
sanction of demotion.
[41]
In short: considering the seriousness of the
misconduct (corruption and collusion), the irretrievably broken down
trust relationship
and the unlikelihood of rehabilitation, the only
appropriate sanction is dismissal.
[42]
In my view there is merit in the Applicant’s
ground for review.
[43]
In casu,
it is evident
that the chairperson, having found that the Respondent’s
conduct amounted to an abuse of power, collusion and
corruption,
failed to appreciate the seriousness of the misconduct when he
imposed a sanction of demotion. He further
failed
to apply his mind properly or to give consideration to the fact that
the Respondent never acknowledged any wrongdoing and
that he was not
a candidate for rehabilitation in circumstances where he persisted
with his denial of wrongdoing, even after he
was found guilty of
misconduct. It is clear that the chairperson attached no weight to
the submissions made in aggravation and
he had no regard for the
seriousness, nature, effect and employment implications of the
Respondent’s conduct. He spent
no time or effort to
consider the submissions and the reality of the breakdown of the
employment relationship, notwithstanding
the fact that this issue was
pertinently raised by the Applicant.
[44]
In
Overstrand
[4]
the LAC has held that:
‘…
The
Constitution and the suite of local government legislation require
municipalities to function effectively, efficiently and
transparently. One of the principal objects of local government is to
provide for democratic and accountable government to local
communities. The first respondent has a public duty to eradicate
corruption and malfeasance from within its ranks and structures...’
[45]
The LAC
further confirmed the conclusion of the Court
a
quo
which
held that
[5]
:
‘
Given
the seriousness of the misconduct and the position of the employee as
chief of law enforcement, the sanction imposed by the
chairperson was
irrational and unreasonable. He clearly did not apply his mind to the
factors outlined above. The mitigating factors
that he took into
account do not remove the operational need of the municipality to
ensure that senior officials in those positions
are exemplary in
their conduct and can be trusted by the municipality and by the
public. There is also a constitutional obligation
on the municipality
imposed by section 152 of the Constitution to provide accountable
government for local communities; to ensure
the provision of services
to those communities; and to promote a safe and healthy environment.
If the employee were to remain in
the employ of the municipality, it
would be failing in its duties to its ratepayers.’
[46]
In
the face of his findings on corruption and collusion, the chairperson
indeed acted irrationally in imposing a sanction of demotion.
The
only rational and appropriate sanction, based on the evidence and the
chairperson’s findings, would be dismissal. This
is more so
where the trust relationship has broken down and where
there
is also a Constitutional obligation on the Municipality imposed by
section 152 of the Constitution to provide accountable
government for
local communities; to ensure the provision of services to those
communities; and to promote a safe and healthy environment.
If the
Respondent were to remain in the employ of the Municipality, it would
be failing in its duties to its ratepayers.
These
material aspects were not considered by the chairperson.
[47]
In the premises I make the following order:
Order
1.
The sanction of demotion
imposed by the First Respondent in the ‘disciplinary hearing
outcome’ dated 21 February 2018
is reviewed and set aside;
2.
The sanction imposed by the
First Respondent is substituted with the following:
'The
Second Respondent is dismissed with immediate effect.’
3.
There is no order as to costs.
__________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advovate
O Mokgotho
Instructed
by: De
Swart Myambo Attorneys
[1]
Act 66 of
1995 as amended.
[2]
[2014] 12
BLLR 1170
(LAC), (2015) 36 ILJ 163 (LAC) at para 29.
[3]
Hoexter C
Administrative
Law in South Africa,
2
nd
edition, 340.
[4]
Supra
n 2 at para 20.
[5]
Ibid at
para 41.