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[2020] ZALCJHB 2
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Matlala v Greater Tzaneen Local Municipality (J2289/19) [2020] ZALCJHB 2 (3 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no: J 2289 / 19
In
the matter between:
BARTHOLOMEW SERAPELO
MATLALA
Applicant
and
GREATER
TZANEEN LOCAL MUNICIPALITY
Respondent
Heard
:
28 November 2019
Delivered
:
03 January 2020
Summary:
Interdict application
–
principles stated – application of principles to matter –
issue of clear right considered
Suspension
– whether suspension unlawful – provisions of Municipal
Regulations as it stands determinative as to whether
suspension
unlawful
Clear
right – interpretation of Municipal Regulations –
substantial compliance not shown – employer failed to
comply
with regulations in material respects
Interdict
– no clear right shown – alternative remedies not
available – proper case for relief made out –
order
granted and suspension uplifted
REASONS
SNYMAN, AJ
Introduction
[1]
This matter concerns an urgent application
by the applicant seeking an order declaring that his suspension by
the respondent is
invalid and unlawful, and consequently that his
suspension be uplifted with immediate effect and he be reinstated
into his normal
duties at the respondent. The application is opposed
by the respondent.
[2]
This
matter does not concern any issue of unfairness or unfair labour
practice, and the applicant does not rely on any of the provisions
of
the Labour Relations Act (‘LRA’).
[1]
The case of the applicant is squarely founded on whether his
suspension was lawful in terms of the Local Government: Disciplinary
Regulations for Senior Managers (‘the Municipal
Regulations’)
[2]
. The crux
of the case is that the respondent had failed to comply with the
pre-suspension processes as contemplated and prescribed
by the
Municipal Regulations itself, when effecting his suspension.
[3]
The
applicant is seeking
final
relief, and as such, the applicant must satisfy three essential
requirements which must all be shown to exist, being: (a)
a clear
right; (b) an injury actually committed or reasonably apprehended;
and (c) the absence of any other satisfactory remedy.
[3]
[4]
The application was argued before me by
both parties on 28 November 2019. Having heard argument, and having
considered the matter,
I made the following order:
1.
The application is heard as one of urgency
in terms of Rule 8.
2.
The suspension of the applicant by the
respondent on 12 November 2019 is declared to be in contravention of
Regulation 6(1) of the
Local Government: Disciplinary Regulations for
Senior Managers, 2010 and consequently unlawful.
3.
The applicant’s suspension is
uplifted and the respondent is ordered to immediately allow the
applicant to resume his duties
as the Municipal Manager of the
respondent.
4.
There is no order as to costs.
5.
Written reasons for this order will be
handed down on 6 December 2019.
[5]
This judgment now constitutes the written
reason as contemplated by paragraph 5 of the order, above, commencing
with a summary of
the relevant background facts.
Background
facts
[6]
As
these are motion proceedings in which the applicant seeks final
relief, insofar as there are factual disputes between the parties
these disputes are to be decided in terms of the principles
enunciated in
Plascon
Evans Paints v Van Riebeeck Paints.
[4]
In
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and
Another
[5]
the Court summarized these principles as follows:
‘…
.
where an applicant in motion proceedings seeks final relief, and
there is no referral to oral evidence, it is the facts as stated
by
the respondent together with the admitted or undenied facts in the
applicants' founding affidavit which provide the factual
basis for
the determination, unless the dispute is not real or genuine or the
denials in the respondent's version are bald or uncreditworthy,
or
the respondent's version raises such obviously fictitious disputes of
fact, or is palpably implausible, or far-fetched or so
clearly
untenable that the court is justified in rejecting that version on
the basis that it obviously stands to be rejected.
’
What
follows below is the relevant background facts arrived at by way of
applying the above principles.
[7]
Being
a municipality, the respondent is governed by the provisions of the
Local Government: Municipal Systems Act (the ‘Systems
Act’)
[6]
.
The conducting of discipline against the senior managers of the
respondent is regulated by the disciplinary regulations forming
part
of and promulgated in the Municipal Regulations referred to above,
which regulations are in turn derived from the Systems
Act.
[8]
Where it comes to the suspension of senior
managers as part of the disciplinary process in the Municipal
Regulations, this is determined
by Regulation 6 of the Municipal
Regulations. The relevant part of this Regulation reads:
‘
(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 subregulation (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.’
[9]
The applicant was indeed appointed by the
respondent in terms of Section 54A of the Systems Act as a senior
manager, having been
appointed as its municipal manager in terms of a
written contract of employment signed on 11 April 2018, and
commencing 1 April
2018. Clause 14.1 of the applicant’s
employment contract provides that he may be suspended if it was
alleged he committed
a ‘
serious
offence or misconduct
’, and the
respondent believed that his presence at the workplace might
jeopardize any investigation in the alleged misconduct
or endanger
the well-being or safety of any person or municipal property. The
clause further provides that the applicant must be
given a reasonable
opportunity to make representations why he should not be suspended.
In terms of clause 2.1 of the employment
contract, the employment of
the applicant is made subject to the provisions of the Systems Act.
[10]
According
to the applicant, what happened to him and which ultimately gave rise
to this application arose from two tenders that
were awarded by the
respondent to Tshiamiso Trading 135 (Pty) Ltd (‘Tshiamiso’),
for two road construction projects,
known as the Mulati Street
project and the Codesa Street project. In order for these tenders to
be lawfully awarded, there must
be compliance with the
Local
Government: Municipal Finance Management
Act
(‘MFMA’)
[7]
and the
regulations published in terms thereof.
[11]
The applicant stated in his founding
affidavit that under his administration, it was discovered that the
tenders awarded to Tshiamiso
relating to the Mulati Street project
and the Codesa Street project, prior to his appointment, were tainted
by irregularity. The
irregularity arose from a misrepresentation of
the figures relating to the Bills of Quantities in respect of the
projects. This
misrepresentation not only advantaged Tshiamiso as
bidder over other bidders, but would enable Tshiamiso to claim almost
double
in revenue from the projects that was contemplated.
[12]
As municipal manager, the applicant
instructed attorneys to provide legal opinion on the matter. Having
received legal opinion and
opinion from counsel, together with a
comprehensive report provided by such attorneys, the applicant
instructed the attorneys to
bring proceedings in the High Court in
Polokwane to challenge the awarding of the tenders. An application
was brought on 19 August
2019 under case number 5267 / 19, seeking to
set aside the award of such tenders. In answering this application,
Tshiamiso appeared
to concede the errors referred to above, labelling
it as ‘
inadvertent casting
errors
’. Tshiamiso conceded that
these errors may have misled the respondent in awarding the tenders
to it, and that if it was not
for these errors, it was likely that it
would not have been the successful bidder. It conceded that it had no
defence to the respondent’s
case. This application is however
still pending.
[13]
The applicant also commenced an internal
investigation in the respondent as to how these irregularities could
have arisen in the
first place, considering its own internal
processes, and whether some of its personnel could be held
accountable. The applicant
reported to the respondent’s council
on 8 October 2019 concerning all the particulars relating to the
matter, as well as
recommendations made by his office as to how such
tender award processes should be conducted going forward (the actual
report by
the attorneys, referred to above, was also provided during
this period). The applicant also sought ratification of the High
Court
case.
[14]
On 22 October 2019, the respondent’s
council, having received the aforesaid report, adopted a resolution.
It is important
to quote the relevant parts of this resolution as it
stands. It reads:
‘
(a)
That Council notes the Municipal managers’ report on Mulati
access road and Codesa to Hani street projects.
(b)
That Council believes there is misleading information regarding the
access road and street projects.
(c)
That council mandate the Mayor to write a letter to the Municipal
manager to give reasons why he should not be put on suspension
while
Council do an investigation on the matter.
(d)
That the Municipal Manager be given seven (7) working days to respond
to the Mayor’s letter.
(e)
That upon receipt of the Municipal manager’s response, Council
be convened to consider such a response. …
’
(sic)
[15]
On 23 October 2019, and clearly pursuant to
the above resolution, the mayor then indeed sent a letter to the
applicant. The letter
recorded that the respondent’s council
considered the report. The letter then states:
‘
Council
holds a view that there are a lot of challenges as highlighted in the
report but also problems that Councillors have seen
emanating from
those roads. To demonstrate on few:
3.1 Discrepancies on the
Bill of Quantities (BOQ) and the contract amount.
3.2 Appointment without
discovering or exposing discrepancies.
3.3 Consulting Engineer’s
discovery, advice to Greater Tzaneen Municipality (GTM) and GTM
proceedings amid discrepancies.
3.4
Resultant sub-contractors and employees disruption of Council, attack
on Municipal manager, legal battled, deployment of high
threat risk
security, terminations, project stoppage etc.
’
(sic)
The
letter concluded as follows:
‘
In
the light of the above examples, Council seek more scientific
information on the following:
4.1 Your role as
Accounting Officer on the whole development which led to where we are
currently, project stoppage and way forward.
4.2 Provide
accountability / reasons to the mayor why Council should not put you
on suspension pending investigation on two roads.
4.3
Your response should be forwarded to the Mayor on or before end of
seven (07) working days from today …
’
[16]
It is virtually impossible to establish
from the resolution of 22 October 2019 and the letter of 23 October
2019 as what exactly
the misconduct is that the applicant was alleged
to have committed. It is similarly unclear as to what the
respondent’s council
sought to investigate, considering the
particulars as contained in the applicant’s report of 8 October
2019 and the fact
that the contents of such report were ‘noted’
by the council. Despite this, the applicant nonetheless complied with
the letter and submitted representations on 1 November 2019. In these
representations, the applicant refers to the reports he had
already
submitted, and indicated his concerns that was it not even indicated
by the respondent as to what content of these reports,
which were
simply noted, would indicate that the applicant committed
impropriety. The applicant pointed out that the High Court
case on
the issue of the two tenders was in fact pending.
[17]
The applicant’s representations
served before the council on 12 November 2019. In a resolution
adopted on that date, it was
resolved that:
‘
(b)
That Council believes that there are matters regarding Mulati Access
Road and Codesa to Hani Street that need to be investigated.
(c)
That Council resolves to put the Municipal manager (Mr. BS Matlala)
in a precautionary suspension with immediate effect …
’
(sic)
It
also resolved that the respondent’s mayor be delegated to
appoint an independent investigator to investigate the matter
and
submit a report to the council.
[18]
The applicant was then issued with a notice
of suspension on 12 November 2019. In this notice, it is stated that
the allegations
of misconduct against the applicant as contained in
the notice of intention to suspend of 23 October 2019 were serious.
It is further
stated that the applicant would be placed on
precautionary suspension until the investigations in this matter were
concluded. The
applicant was instructed not to report for work during
his suspension, and not to interfere with the investigation,
witnesses and
evidence during the ‘subsistence’ of the
investigation.
[19]
Before resorting to litigation, the
applicant, through his attorneys, first attempted to convince the
respondent to withdraw his
suspension, by way of a letter of demand
sent on 14 November 2019. The respondent was given a deadline of 15
November 2019 to comply,
and was threatened with urgent Labour Court
proceedings if it did not comply. The respondent did not comply with
this deadline.
The current application then followed three days
later, on 19 November 2019, in which the applicant challenged the
lawfulness of
this suspension.
Urgency
and jurisdiction
[20]
It
is trite that the Labour Court has jurisdiction to entertain an
application for
urgent
intervention in the case of suspension of an employee, in terms of
Section
158 of the LRA.
[8]
But it
must always be remembered that the Labour Court should only so
intervene in exceptional circumstances. As the
Court said in
Booysen
v Minister of Safety and Security and Others
[9]
:
‘…
.
such an intervention should be exercised in exceptional cases.
It is not appropriate to set out the test. It should be left to the
discretion of the Labour Court to exercise such powers having regard
to the facts of each case. Among the factors to be considered
would
in my view be whether failure to intervene would lead to grave
injustice or whether justice might be attained by other means.
The
list is not exhaustive.’
[21]
It
follows that even though the Court has the jurisdiction to urgently
intervene, it should only do so if the applicant is able
to show
compelling and extraordinary circumstances as to why this Court
should now intervene, and not allow the disciplinary process
against
the applicant to run its course, in the normal course.
[10]
The short duration and purpose of suspension under Regulation 6 may
well, in my view, constitute such compelling and extraordinary
circumstances, especially where there is material non-compliance with
the regulations.
[22]
I
need to first deal with urgency. I accept that this matter is
urgent. In any event, and in the argument submitted by both
parties before me, the issue of urgency was not really placed in
contention. The applicant was suspended on 12 November 2015, first
engaged the respondent through his attorneys on 14 November 2019 to
demand the uplifting of his suspension, and brought this application
on 19 November 2019 when no response was forthcoming from the
respondent by the stipulated deadline of 15 November 2019. I am
satisfied the applicant acted promptly and immediately upon being
suspended, and it cannot be said that the applicant is perpetrator
of
self-created urgency.
[11]
Both
parties have had the opportunity to fully state their respective
cases in the pleadings and in argument, with a complete set
of
affidavits filed, and it is my view that it is in the interest of
justice to finally determine this matter. I thus conclude
there
are proper grounds to finally determine this matter as one or
urgency.
Analysis
[23]
This
is a case where Regulation 6 of the Municipal Regulations applies,
being specifically incorporated by reference, into the applicant’s
contract of employment. In any event, clause 14.1 of the applicant’s
employment contract mirrors the essence of Regulation
6. If
Regulation 6 and the actual terms of the applicant’s contract
of employment were not complied with by the respondent
in effecting
the suspension of the applicant, the applicant’s suspension
would be unlawful, and the applicant would succeed
in demonstrating
the existence of a clear right.
[12]
As held in
Biyase
v Sisonke District Municipality and Another
[13]
:
‘
These provisions
may well be unduly onerous. But it is common cause that the parties
are bound by them. Failure to do so would make
the suspension
unlawful for want of compliance with the regulations.’
[24]
Was
there thus compliance in this case? In answering this question,
regard must first be had as to when Regulation 6 can be relied
upon.
This can only competently happen if the employer has a reasonable
belief of the existence of serious misconduct. This belief
does not
have to be capable of being proven at this point or set out in
detailed specificity, and only has to be a reasonable belief
on a
prima facie basis.
[14]
It is
therefore important for the respondent in this instance to at least
set out a prima facie basis for believing that the applicant
committed serious misconduct, as part of any notice of intention to
suspend under Regulation 6.
[25]
Further,
Regulation 6 contemplates the opportunity to make representations
before the final decision is taken to suspend a senior
manager, and
it therefore follows that the senior manager concerned must at least
be placed in a position where he or she is able
to effectively make
such representations.
[15]
Because the senior manager must receive proper notice of intention to
suspend, this notice has requirements attached to it, which
was
summarized in
Lebu
v Maquassi Hills Local Municipality and Others (2)
[16]
as follows:
'The notice must contain
at least a description of the misconduct that the manager is alleged
to have committed, and the council's
justification for its
in-principle decision, and invite representations in relation to
both. Both the nature of the misconduct
alleged and the purpose
of the proposed suspension must be set out in terms that are
sufficiently particular so as to enable the
senior manager to make
meaningful representations in response to the proposed suspension.
….’
[26]
The
Court in
Mere
v Tswaing Local Municipality and Another
[17]
succinctly summed up the position as follows:
‘…
Therefore,
and for a senior manager to be lawfully suspended in terms of
Regulation 6, the municipality must have reason to believe
that at
least one of the circumstances as contemplated by Regulation 6(1)
exist. The municipality must then notify the senior
manager of
its intention to suspend him or her, and provide, at the very least,
basic particulars as to what motivated this intention
to suspend, so
that the senior manager can provide informed answers as to why he or
she should not be suspended. Detailed
evidence or particulars
need not be provided. The senior manager must then be given at
least seven days to provide such a
response. Once this response
is given, it must be considered by the municipality, and if it
decided to continue with the
suspension, the senior manager must be
informed in writing of the suspension and the reasons why he or she
is being suspended,
with reference to the grounds set out in
Regulation 6(1).’
[27]
Unfortunately, and in this case, the
respondent falls far short, where it comes to the essential
requirements of Regulation 6 and
the clear terms of the applicant’s
employment contract. As touched on above, it is difficult to
comprehend what exactly the
serious misconduct is that the applicant
is even on a prima facie basis believed to have committed. All that
one knows in this
case is that there exists irregularities with the
two tenders relating to the Mulati Street project and the Codesa
Street project.
But there is absolutely no evidence or indication as
to how the applicant was involved in the award of the tenders and may
have
failed or transgressed in this regard. In fact, and if anything,
the evidence shows that it was due to the efforts of the applicant
that these irregularities were ultimately identified.
[28]
The basis of the decision making of the
respondent where it came to the suspension of the applicant must be
gathered from the resolutions
adopted by the respondent’s
council and the notices furnished to the applicant. It is significant
that the resolution of
22 October 2019 came about because the
applicant gave a detailed report about the irregularities pertaining
to the aforesaid two
tenders. The resolution does not express any
concerns about impropriety of the applicant as may emanate from the
report. In fact,
the report is merely noted. The resolution further
records that the council is concerned about ‘
misleading
information
’ concerning the
tenders. There is no indication that this misleading information
emanated from the applicant or that he is
in any way responsible for
it. If the resolution is considered in conjunction with the
applicant’s report that featured before
the respondent’s
council, the only misleading information that exists emanated from
other parties and not the applicant at
all.
[29]
The resolution of 22 October 2019 appears
to simply recommend the contemplated suspension of the applicant
without any reason for
it, solely for the purpose that the council
could investigate the issue relating to the tenders for the two road
projects. This
does not comply with what is required by Regulation 6.
In my view, it should at least be apparent from the resolution
adopted by
the respondent’s council on what basis it is
believed that the applicant committed serious misconduct, and why it
was required
to suspend the applicant, with specific reference to the
requirements in regulation 6(1)(a) and (b). But even if this did not
feature
in the resolution, it should at least have featured in the
notice of intention to suspend of 23 October 2019. But yet again, the
respondent failed where it came to this notice, as set out below.
[30]
In the notice of intention to suspend of 23
October 2019, it is stated that there are ‘
a
lot of challenges
’ highlighted in
the applicant’s report of 8 October 2019. There is however no
indication as to how these ‘challenges’
constitute any
prima facie
reasonable belief of serious misconduct on the part of the applicant.
The notice of suspension then identifies a number of ‘problems’
the councillors have seen, emanating from the two projects, and lists
these problems. But yet again, there is no indication on
how the
applicant was involved in, or in any way responsible for these
‘problems’. What is patently absent is any basic
particulars as to what alleged serious misconduct on the part of the
applicant motivated this intention to suspend, so that the
applicant
could provide informed answers as to why he or she should not be
suspended as a result thereof.
[31]
In addition to the above, both the
resolution of 22 October 2019 and the notice of intention to suspend
of 23 October 2019 do not
indicate why the suspension of the
applicant was necessary, other than a reference to the respondent’s
council wanting to
conduct an investigation. There is no indication
that the applicant may interfere with or jeopardize the
investigation,
endanger the well-being or safety of any
person or municipal property, his continued presence may be
detrimental to stability
in the municipality, that he may interfere
with potential witnesses, or commit further acts of misconduct. In
short, the rationale
for suspension is not indicated, so that the
applicant can have an opportunity to make proper informed
representations in this
regard.
[32]
Giving
the applicant seven days to make representations on why he should not
be suspended is only part of what is required. It cannot
legitimize
the failure to properly inform the applicant of the basic tenets of
what he is alleged to have done wrong, and why it
was necessary to
suspend him with reference to at least one of the grounds listed in
Regulation 6(1)(a) and (b). The point is simply
that how can it be
said that the applicant had a proper opportunity to make
representations if these basic requirements were not
met? Even though
the applicant ultimately did make representations as he was called on
to do, this equally cannot remedy these
failures. As held in
Lebu
(2) supra
:
[18]
‘
The
terms of the regulation clearly contemplate an in-principle decision
to suspend, taken on the basis of a reasonable belief that
the senior
manager has committed misconduct and that at least one of the
requirements in paras (a) and (b) is present. The municipality
is
then required to consider the matters set out in subregulation (1)
together with any representations received, and then and
only then,
may the municipality suspend the employee. I would add that in my
view, it is not sufficient for a municipality merely
simply to
reproduce the justifications listed in paras (a) and (b). In the
present instance, that is what the municipality has
done, with the
omission only of the factor listed in para (a)(i) on the basis,
presumably, that the investigation initiated into
the applicant's
conduct has been completed. Suspension is a measure that has serious
consequences for an employee, and is not a
measure that should be
resorted to lightly. There appears to be a tendency, especially in
the public sector, where suspension is
applied as a measure of first
resort and almost automatically imposed where any form of misconduct
is alleged. The purpose of removing
an employee from the workplace,
even temporarily and on full pay, must be rational and reasonable,
and must be conveyed to the
employee concerned in sufficient detail
to enable the employee to compile the representations that he or she
is invited to make
in a meaningful way. …
’
[33]
The reason given as to why the applicant was ultimately
suspended compounds the difficulties. The notice of suspension of 12
November
2019 refers to the allegations of misconduct in the notice
of 23 October 2019. However, the notice of 23 October 2019 does not
set out any allegations of misconduct on the part of the applicant.
So the unanswered question remains, what was the applicant suspended
for? This is at odds with what is contemplated by Regulation 6.
[34]
In the answering affidavit, the respondent
suggests that the misconduct of the applicant is based on his failure
to take urgent
steps to intervene in the irregular tenders awarded in
respect of the two road projects, which, according to the respondent,
should
have done as far back as February / March 2019. The problem
with this case is that it does not even remotely feature in any of
the resolutions adopted by the respondent’s council concerning
the applicant’s suspension, or in the notice of intention
to
suspend and actual suspension notice provided to him. Similarly, and
in the answering affidavit, there is an attempt to justify
his
suspension as being that his continued presence at work was likely to
cause instability in the workplace, also never raised
before. There
appears to be an
ex post facto
justification of the suspension, but considering the provisions of
Regulation 6 and the purposes thereof, such an approach cannot
be
permitted.
[35]
For
all these reasons, there has been a material failure by the
respondent to comply with the prescripts of Regulation 6. As such,
the applicant’s suspension implemented on 12 November 2019 is
unlawful. As comparably held in
Lebu
(2) supra
:
[19]
‘
In
the present instance, the municipality notified the applicant of its
justification for his suspension on the same day that he
was
suspended. The municipality also failed to articulate the purpose of
the applicant's suspension. In my view, therefore, the
applicant's
suspension constituted a breach of regulation 6 and he is entitled to
the relief that he seeks …
’
[36]
The
applicant also has no alternative remedy available to him in this
instance. He cannot approach the applicable bargaining council
under
the LRA, where it concerns his suspension being unlawful, as such a
case has nothing to do with his rights under the LRA.
[20]
As touched on above, the applicant does not in any way rely on his
rights under the LRA and any alleged unfairness or not of his
suspension, which would have to have been referred to the bargaining
council.
[37]
Lastly,
the consideration of prejudice favours the applicant.
[21]
He would be prejudiced in the conduct of his duties should he be
excluded from the workplace without proper cause or reason. The
longer this suspension endures, the more difficult it will be for a
person fulfilling the kind of functions of the applicant to
properly
and effectively resume work. The situation is exacerbated by the fact
that the respondent’s council immediately
appointed a new
acting municipal manager. The simple reality also is, and as matters
stand, there is no indication of what the
applicant has even done
wrong, and on a
prima
facie
basis, at the very least, he appears to have been doing a proper job
until the suspension landed. It is in the interest of the
public and
the statutory functions the applicant is meant to discharge under the
Systems Act that the applicant’s suspension
be lifted.
[38]
However, this is not the end of the road for the respondent.
Nothing stands in the way of it still being able to suspend the
applicant
going forward. It must just comply with Regulation 6. It
must formulate the
prima facie
basis on which it alleged that
the applicant had committed serious misconduct. It must then indicate
what reasons as contemplated
by regulation 6(1) would necessitate the
applicant’s suspension. And then the applicant must be called
upon to make representations
by way of a notice of intention to
suspend reflecting this particularity. If it is true that the
applicant committed serious misconduct,
then this should not be hard
to do.
[39]
In sum therefore, I
am satisfied that the applicant has met the requirements necessary in
order for him to obtain the relief he
seeks. The applicant has a
clear right to the relief he seeks, has no alternative remedy
available to him, and considerations of
prejudice favour him. The
applicant’s application must thus succeed, his suspension be
uplifted, and he be allowed to immediately
resume his duties.
[40]
I
lastly turn to the issue of costs. In terms of section 162 of the
LRA, I have a wide discretion where it comes to the issue of
costs.
Even though the respondent was not successful, I do consider that the
case advanced by the respondents was at least arguable,
and that the
applicant had to establish exceptional circumstances to justify
intervention. I also consider that there is still
a proper process
that can follow, and an ongoing employment relationship between the
parties. I am mindful of the dictum of the
Constitutional Court in
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[22]
where it comes to costs awards in employment disputes before this
Court, and I do not consider there to be sufficient reason to
depart
from this. For all these reasons, I exercise my discretion as to
costs in this matter by making no order as to costs.
[41]
It is for all the reasons as set out above
that I made the order I did, as set out in paragraph 4 of this
judgment,
supra
.
_____________________
S Snyman
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant:
Ramafalo M Attorneys
For the
Respondent:
Lebea & Associates Attorneys
[1]
Act 66 of 1995 (as amended).
[2]
GN
344 as contained in GG 34213 of 21 April 2011.
[3]
Setlogelo
v Setlogelo
1914 AD 221
at 227;
V
& A Waterfront Properties (Pty) Ltd and Another v Helicopter &
Marine Services (Pty) Ltd and Others
2006 (1) SA 252
(SCA) at para 20.
[4]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E 635C; See also
Jooste
v Staatspresident en Andere
1988
(4) SA 224
(A)
at
259C – 263D;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
at
paras 26 – 27;
Molapo
Technology (Pty) Ltd v Schreuder and Others
(2002) 23 ILJ 2031 (LAC) at para 38.
[5]
2009
(3) SA 187
(W) at para 19.
[6]
Act
32 of 2000.
[7]
Act
56 of 2003.
[8]
Section 158(1) reads: ‘(1) The Labour Court may (a) make any
appropriate order, including (i) the grant of urgent interim
relief
(ii) an interdict; (iii) an order directing the performance of any
particular act which order, when implemented, will
remedy a wrong
and give effect to the primary objects of this Act; (iv) a
declaratory order ….’.
[9]
(2011)
32 ILJ 112 (LAC) at para 54. See also
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
(2012)
33 ILJ 2033 (LAC) at para 46.
[10]
Mere
v Tswaing Local Municipality and Another
(2015)
36 ILJ 3094 (LC) at para 18.
[11]
See
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
(2010)
31 ILJ 112 (LC) at para 18;
National
Union of Mineworkers v Black Mountain - A Division of Anglo
Operations Ltd
(2007)
28 ILJ 2796 (LC) at para 12;
Continuous
Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes and Another
(2012)
33 ILJ 629 (LC) at para 21 – 24;
Mere
(
supra
)
at para 19.
[12]
Mere
(
supra
)
at paras 35 and 41.
[13]
(2012)
33 ILJ 598 (LC) at para 20.
[14]
See
Mothogoane
and Another v Lepelle-Nkumpi Local Municipality and Another
(2019)
40 ILJ 1072 (LC) at para 22.
[15]
Mere
(
supra
)
at para 37;
Mojaki
v Ngaka Modiri Molema District Municipality and Others
(2015)
36 ILJ 1331 (LC) at para 29.
[16]
(2012)
33 ILJ 653 (LC)
at para 16. See also
Tsietsi
v City of Matlosana Local Municipality and Another
(2015)
36
ILJ
2158 (LC)
at para 21;
Retlaobaka
v Lekwa Local Municipality and Another
(2013)
34
ILJ
2320 (LC)
at
para 8
[17]
(2015)
36 ILJ 3094 (LC) at para 40.
[18]
Id at para 14.
[19]
Id at para 17.
[20]
See
Gallocher
v Social Housing Regulatory Authority and Another
(2019)
40 ILJ 2732 (LC) at para 81;
Biyase
(
supra
)
33 ILJ 598 (LC) at para 30.
[21]
Compare
Gallocher
(
supra
)
at para 83.
[22]
(2018)
39
ILJ
523 (CC)
at
para 25.