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[2019] ZALCJHB 276
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Malebana v South African Nuclear Energy Corporation SOC Limited and Another (J1727/19) [2019] ZALCJHB 276; [2020] 2 BLLR 208 (LC); (2020) 41 ILJ 1145 (LC) (8 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 1727/19
In the matter between:
VUSI
MALEBANA
Applicant
and
THE SOUTH AFRICAN
NUCLEAR ENERGY
CORPORATION SOC
LIMITED
First
Respondent
AYANDA MYOLI
N.O
Second Respondent
Heard: 2 October 2019
Delivered: 8 October 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The
applicant seeks an order on an urgent basis, to execute the judgment
and order of Mathebula AJ handed down on 12 September 2019
under the present case number, pending the respondents’
application for leave to appeal and any intended appeal that may
follow should the appeal be granted. The application is brought in
terms of section 18(1) and (3) of the Superior Courts Act.
[1]
[2]
The background material leading to the order and judgment of
Mathebula
AJ is succinctly set out in that judgment and I do not
intent to repeat same in this judgment safe to highlight the
following;
2.1
The
applicant is currently employed by the first respondent (NECSA) as
its Chief Legal Advisor. NECSA is a state owned company established
in terms section 3 of the Nuclear Energy Act.
[2]
The second respondent Mr Ayanda Myoli (Myoli) is NECSA’s Acting
Group Chief Executive Officer.
2.2
The applicant was suspended on 24 July 2019 on the grounds
that he
had
inter alia
, copied NEHAWU, a trade union that
organises at NECSA, on a letter dated 3 July 2019
containing confidential information
that was sent to the Minister,
the Director General, and Deputy Director General.
2.3
Five allegations of misconduct were levelled against the applicant on
12 August 2019.
These related to dissemination of
confidential and also misleading information to NEHAWU; the failure
to convene the Annual General
Meeting; the approval of the Addendum
to the Consultancy Services Agreement; and approval of the Rosatom
Agreement.
2.4
Following
his suspension, the applicant approached the Court on an urgent basis
in which he sought various declaratory orders. The
first was that
Myoli’s appointment as Acting CEO was unlawful; the second was
that his suspension should be declared unlawful
and constituted an
occupational detriment, and be set aside; and an order restraining
and interdicting the respondents from instituting
any disciplinary
action against him and from engaging in any conduct towards him which
would amount to an occupational detriment
as defined in the Protected
Disclosure Act
[3]
.
2.5
The matter was heard on 21 August 2019, and on
12 September 2019,
Mathebula AJ delivered a full judgment
with an order in the following terms;
“
1.
The application is heard as one of urgency.
2.
The suspension of the applicant by the second respondent on 24 July
2019 is declared
to be unlawful and to constitute an occupational
detriment;
3.
The respondents are ordered to uplift the suspension of the applicant
and allow
him to resume his duties with immediate effect from the
date of this order;
4.
The respondents are restrained and interdicted from taking any
disciplinary action
against the applicant that relates to the
information he seeks to declare protected disclosure in terms of the
dispute referred
to the CCMA;
5.
The respondents are ordered to pay the costs of the applicant, which
costs are
to include the costs of two (2) counsel”
2.6
On the same date that the judgment was handed down, the respondents
filed and
served an application for leave to appeal. The
Supplementary notice of Application for leave to appeal was served
and delivered
on 19 September 2019.
[3]
The respondents disputed that the matter should be treated as urgent.
This contention however loses sight of the fact the order in terms of
which leave to appeal is sought or to be executed pending
the leave
to appeal was obtained on an urgent basis. A second consideration is
that flowing from the timeline within which judgment
was handed down,
the application for leave to appeal was launched, and the
notice to attend the disciplinary enquiry as scheduled
for
8 October 2019, I am satisfied that this matter deserves
the urgent attention of the Court.
[4]
Section 18 of the Superior Courts Act provides;
“
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.
[5]
The above
provisions have received attention in this Court and flowing from
Fidelity
Security Services (Pty) Ltd v Naidoo and Another
[4]
and
other authorities, it can be accepted that an applicant seeking to
execute an order pending an appeal is required
to demonstrate
that the facts and circumstances of the particular application are
exceptional and warrant a deviation from the
normal rule. This
required the applicant to show that the facts and circumstances of
his/her particular case are uncommon, unusual
and\or out of the
ordinary to the extent that a departure from the ordinary rule that
an appeal suspends the operation of the judgment
and order appealed
against
,
should not apply. Furthermore, the applicant is required to prove on
a balance of probabilities that he will suffer irreparable
harm
should the order for leave to execute not be granted pending the
appeal, whilst the respondent would not suffer any irreparable
harm
if leave to execute was granted pending appeal. As it was reiterated
in
Old
Mutual Ltd and Others v Moyo and Another
[5]
,
t
he
absence of anyone of the three requirements will be adequate to
dismiss the application.
Were
exceptional circumstances demonstrated?
[6]
As to what
constitutes exceptional circumstances was considered in
University
of the Free State v Afriforum and Another
[6]
in the
following terms;
“
[12]
The concept of ‘exceptional
circumstances’ introduced by s 18(1), was considered
by Mpati P
in
Avnit v First Rand Bank Limited
[2014] ZASCA 132
, in the
context of s 17(2)(f) of the Act which provides that in ‘exceptional
circumstances’ the President of this court
may refer a decision
on an application for leave to appeal to the court for
reconsideration. Mpati P held that upon a proper construction
of s
17(2)(f), the President will need to be satisfied that the
circumstances are ‘truly exceptional’ before referring
a
matter for reconsideration.
[13]
Whether or not ‘exceptional
circumstances’ for the purposes of s 18(1) are
present, must
necessarily depend on the peculiar facts of each case. In Incubeta
Holdings at para 22 Sutherland J put
it as follows:
‘
Necessarily,
in my view, exceptionality must be fact-specific. The circumstances
which are or may be “exceptional” must
be derived from
the actual predicaments in which the given litigants find
themselves.’
I
agree. Furthermore, I think, in evaluating the circumstances relied
upon by an applicant, a court should bear in mind that what
is sought
is an extraordinary deviation from the norm, which, in turn, requires
the existence of truly exceptional circumstances
to justify the
deviation.”
[7]
The grounds upon which the applicant believes that exceptional
circumstances
exists for the enforcement and execution of Mathebula
AJ’s order pending the application for leave to appeal are
that;
7.1
The relief that was granted is time-sensitive, as if leave to appeal
was granted,
the appeal will only come before the Labour Appeal Court
long after 8 October 2019 has passed, thus making the order
sought meaningless as it would have lost its practical effect.
7.2
Given the disclosures he has already made and the lapses in proper
governance
by the Board that he had pointed out, the efforts by the
respondents to keep him away from the workplace are to create a
fertile
environment to flaunt the rules and conduct business of the
state organ unchecked.
[8]
In opposing
the application, the respondents contention is that the applicant has
not demonstrated any exceptional circumstances
and I agree. The
contention that the relief granted by Mathebula AJ is time sensitive
as the application for leave to appeal may
take longer than necessary
and long after the disciplinary hearing has taken its course is
nothing exceptional as that is a normal
consequence of litigation.
The reliance by the applicant on
Rudman
v Maquassi Hills Local Municipality and Others
[7]
is misplaced for the reason that in that case, Rudman’s acting
appointment was due to expire in three months, and it was
apparent
that any appeal proceedings in respect of the Court’s order
which granted her relief would have had no practical
effect by the
time the leave to appeal was heard.
[9]
In this case however, the applicant is a permanent employee. The
order
granted by Mathebula AJ is hardly time sensitive as his
suspension was uplifted. The fact that disciplinary proceedings are
scheduled
to take place on 8 October 2019 does not make the
relief he obtained time sensitive, as notwithstanding that relief, it
cannot be said that he is immune from being called to a disciplinary
hearing in circumstances where he is to face charges that
are not in
conflict with the court order.
[10]
There can hardly be exceptional circumstances where on a proper
reading of the relief granted
by Mathebula AJ, it is clear that the
order is specific, as it restrains and interdicts the respondents
from taking any disciplinary
action against the applicant that
relates to the information he seeks to declare protected disclosure
in terms of the dispute referred
to the CCMA. Two out of five charges
of misconduct the applicant has to answer to specifically relates
such alleged protected disclosures.
The other three are not. Any link
between the alleged protected disclosure and the other three
unrelated charges are clearly matters
of evidence that can be
ventilated at the disciplinary enquiry. As it was pointed out on
behalf of the respondents, an exceptional
circumstance can only occur
if the applicant can demonstrate that at the disciplinary hearing, he
would not be in a position to
object to that hearing ventilating
aspects of the charges which fall within the prohibited scope as
specified in the Mathebula
AJ’s order, and in particular,
those related to alleged disclosure of confidential information. As I
understood from
the pleadings and other related material, the
applicant will be legally represented at those proceedings, and I can
clearly see
no reason why he would not be in a position to raise
through his legal representatives, any areas of concern with the path
that
the enquiry takes.
[11]
The question surrounding issues of governance of the board and the
suggestion that the
respondents seek to keep him out of the workplace
in order for mismanagement and maladministration to continue are
clearly matters
of evidence and conjecture, and are for now
unsubstantiated as correctly pointed out by the respondents. If there
is merit in these
allegations, these are issues to be fully
ventilated when the applicant is afforded an opportunity to state his
case at the disciplinary
enquiry, and all of these issues can clearly
not be regarded as truly exceptional.
[12]
A
submission was made on behalf of the applicant that on the authority
of
Van
Alphen v Rheinmettall Denel Munition
[8]
,
a
protected disclosure as he had made, constitutes an exceptional
circumstances. The distinguishing facts of this case however are
that
the applicant has already obtained an order interdicting and
restraining the respondents from taking any disciplinary action
against him that relates to the information he seeks to declare
protected disclosure in terms of the dispute referred to the CCMA.
On
a proper reading, the information has not as yet been pronounced as a
‘genuine protected disclosure’, and as such
cannot in my
view in line with the authority referred to, be considered as
exceptional circumstances.
Irreparable
harm to the applicant:
[13]
Central to the allegations of irreparable harm is that the applicant
has a right to qualify
for a performance bonus in terms of the
applicable performance agreements he has with the first respondent.
He averred that it
would be impossible to quantify a claim for
damages in relation to a performance bonus as the right to such a
bonus is dependent
upon his presence at the workplace. He also
averred that the harm and prejudice is also to his reputation and
career as long as
he remains suspended.
[14]
I agree with the respondents’ contention that the
applicant could only succeed
on the issue of a performance bonus if
he demonstrated that he had a right to that bonus. Since he had not
shown the basis of the
right, he had no right in law to expect it,
and thus irreparable harm could not flow from the exercise in the
future, of a discretions
to award the bonus, which was something that
was not even guaranteed.
[15]
If there is any harm that the applicant may suffer, it cannot however
be irreparable, as
upon being subjected to the disciplinary enquiry
in respect of matters that do not fall within Mathebula AJ’s
order, he may
be exonerated, whilst the protective disclosure dispute
takes its course at the CCMA. Furthermore issues surrounding
reputational
damage are hardly considered exceptional, where the
rights of an employer to discipline its employees are at stake. As
was also
submitted on behalf of the respondents, the applicant has
not substantiated any allegations of reputational harm, and it is not
clear on what basis why any harm would follow from an application for
leave to appeal against an order in his favour, or a refusal
to grant
him leave to execute pending the leave to appeal. Reputational harm
as a result of a suspension cannot be irreparable
in an instance
where the applicant can be vindicated in due cause.
Irreparable
harm to the respondent if leave to execute is granted.
[16]
The applicant’s contention is that the respondents will not
suffer any irreparable
harm in circumstances where they will have the
benefit of services rendered by him. This presupposes that
without him at
the workplace, the first respondent cannot continue to
operate. The respondents however have averred in the answering
affidavit
that business at the workplace will continue as usual
without the applicant, and I agree. No employee can claim to be
indispensable.
[17]
The applicant’s assertions however about how important he is to
the organisation
comes at the back of his conduct since the dispute
started, where his disposition and posture towards members of the
board as a
whole has bordered on contempt, demonstrating a slippery
slope towards an inevitable breakdown of working relationship. In
this
regard, the respondents in their answering affidavit have
referred to various posts made by the applicant on social
media,
where he had uploaded photographs of all or most of the
current members of the board, and insulted and vilified them, thus
bringing
the board and the first respondent into disrepute. As an
example, emoticons displaying laughing faces are placed on the
photograph
of Myoli, the Acting Group Chief Executive, and in
another, Myoli is named as ‘
The Lee Harvey Oswald at Necsa”
. Other board members whose photographs were posted are referred to
as ‘tormentors’ etc, with emoticons display laughing
and
unimpressed faces.
[18]
Other than this public vilification of the board, the applicant has
also released a press
statement on 14 August 2019, in which
he accused the former Minister of Energy, the board, the respondents’
attorneys
of record, and the appointed chairperson of the
disciplinary enquiry (Adv Csssim SC) of a variety of things including
impropriety.
[19]
In circumstances where the applicant had added fuel to the fire to
the dispute with the
board and the first respondent with such
conduct, how it may be asked, can it be expected of business to
continue as usual with
the Mathebula AJ’s order being executed?
The irreparable harm to the respondents and the board is clearly
palpable, and the
applicant has not done himself any favours with his
conduct as an in-house lawyer.
[20]
In conclusion, and on an overall assessment of the facts of this
case, the applicant has
not demonstrated that the
the
facts and circumstances of this case are uncommon, unusual and\or out
of the ordinary to the extent that a departure from the
ordinary rule
that an appeal suspends the operation of the judgement and order
appealed against should not apply. He has not discharged
the onus
placed on him, to demonstrate on
a balance of probabilities
that he will suffer irreparable harm should the order for leave to
execute not be granted pending the
appeal. On the other hand, there
is real irreparable harm that the respondents have already
suffered as a result of the applicant’s
conduct, and which they
will continue to suffer should the leave to execute be granted
pending an appeal. In the result, the applicant’s
application
should fail.
[21]
I have further taken into account the requirements of law and
fairness in regard
to the issue of costs. It is appreciated that
employees or any party for that matter has a right to bring an
application to seek
to execute a favourable order pending an appeal.
Even then, a case must be made out for the relief that is sought,
with the primary
consideration being that such applications must be
brought in good faith. This was clearly lacking in this case, and I
see no reason
why the respondents should be burdened with the costs
of this application.
[22]
Accordingly, the following order is made;
Order:
1. The
Applicant’s application to for leave to execute the judgment
and order of Mathebula AJ handed down on 12 September 2019
pending the Respondents’ application for leave to appeal is
dismissed with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
ARH Mason of Mason Attorneys
For
the First & Second Respondents:TJ Bruinders SC with B Mkhize,
instructed by Mncedisi Ndlovu & Sedumedi Attorneys INC
[1]
Act
10 of 2013
[2]
Act 46 of 1999
[3]
Act
26 of 2000
[4]
(J1837/2015) [2016] ZALCJHB 70 (3 February 2016
)
at
para 6, where it was held:
“
Turning
next to the application for leave to execute the judgment and order
pending appeal. This court is a superior court, and
subject to the
Superior Courts Act, 10 of 2013
.
Section 18
of that 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, i.e. that the operation and execution of the
judgment and order appealed against
is suspended. The approach
established by s 18 requires an applicant in an application for
leave to execute to show that the
facts and circumstances of the
particular application are exceptional and warrant a deviation from
the normal rule. This has
been referred to as a “threshold
factual test” (see Incubeta Holdings (Pty) Ltd and another v
Ellis and another
2014 (3) SA 189
(GJ)) and requires the applicant
to show that the facts and circumstances of its particular case are
uncommon, unusual and\or
out of the ordinary to the extent that a
departure from the ordinary rule that an appeal suspends the
operation of the judgement
in order appealed against should not
apply. Further, the applicant is required to prove on a balance of
probabilities that it
will suffer irreparable harm should the order
for leave to execute not be granted pending the appeal. Finally, the
applicant
must prove on a balance of probabilities that the
respondent in the application for leave to execute will not suffer
irreparable
harm if leave to execute is granted pending appeal. (See
Incubeta Holdings (supra); and the unreported judgment by Murphy J
in
Coetzer and ERB Technologies v Actom (Pty) Ltd, A 269/2015).‟
See
also
Luxor Paints (Pty) Ltd v Lloyd
( (2017) 38 ILJ 1149
(LC); [2017] 7 BLLR 700 (LC)
[5]
(2019/22791) [2019] ZAGPJHC 315 (6 September 2019) at para 5
[6]
[2017] 1 All SA 79
(SCA);
2018 (3) SA 428
(SCA); See also
Ntlemeza
v Helen Suzman Foundation and Another
[2017] 3 All SA 589
(SCA);
2017 (5) SA 402
(SCA) at paragraphs 36 -
39
[7]
(J 3495/18) [2018] ZALCJHB 371 (8 November 2018)
[8]
(2013)
34 ILJ 3314 (LC) at para 42, where the late Steenkamp J held;
“
This
court and the Labour Appeal Court has pointed out that it is only in
exceptional circumstances that it will intervene to
interdict
pending disciplinary hearings. A genuine protected disclosure would
constitute such exceptional circumstances. The
applicant in this
case has not shown that those exceptional circumstances exist in her
case.”