VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J 4158/98
In the matter between:
MABILO, NTATE JOSIAH Applicant
and
MPUMALANGA PROVINCIAL GOVERNMENT First Respondent
DIRECTORGENERAL, MPUMALANGA PROVINCIAL
GOVERNMENT Second Respondent
THE DEPARTMENT OF PUBLIC WORKS,
ROAD AND TRANSPORT Third Respondent
JUDGMENT
JAJBHAY, AJ:
[1] The parties in this matter are as follows: Mr Ntate Josiah Mabilo is the applicant; the first
respondent is Mpumalanga Provincial Government; the second respondent is the DirectorGeneral,
Mpumalanga Provincial Government and the third Respondent the Department of Public Works,
Road and Transport. The applicant was employed by the first and third respondents as a Deputy
DirectorGeneral and he was the head of the Department of Public Works, Roads and Transport.
[2] On 24 November 1998 the applicant received a notice, purportedly in terms of section 22 of the
Public Service Act, Proclamation No. 103 of 1994, read with the regulations. This letter reads as
follows To Mr N J Mabilo:
"Dear Sir
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1. You are informed that there is an investigation to be conducted regarding allegations made against you.
2. The following allegations are made against you:
(a) That you have wilfully disobeyed carrying out a lawful order or instruction given to you by the
member of the Executive Council for Public Works, Roads and Transport in that
1.on or about May 1998 you failed and/or neglected and/or refused to
establish a fulltime secretariat for the Taxi Forum;
(ii) you failed and/or neglected and/or refused to set up a pilot project to
enforce security at the Nelspruit/Bushbuck Ridge taxi route;
(iii) you failed and/or neglected and/or refused to appoint assessors to
effect registration in the taxi industry;
(iv) you failed and/or neglected and/or refused to appoint nonexecutive
directors to the Mpumalanga Provincial Cooperative of Taxis;
(v) you failed and/or neglected and/or refused to lead and report on the
activities of the steering committee established as a result of the
Roads Indaba held on or about November 1997.
(b) You wilfully disobeyed carrying out lawful orders or instructions given
to you for the submission of the action plan for your department and its
executives contained in the letter from the DirectorGeneral dated 10
October 1997.
3. In view of the fact that your presence on duty may be prejudicial to the
administration as you may interfere with the investigation and you may
be prone to commit a similar offence, a decision to suspend you may be
taken shortly after considering your reasons as to why you should not be
suspended.
4. Should you fail to provide satisfactory reasons within five working days,
you will immediately be relieved of all your duties and be further
prohibited from entering your workplace or building or even engaging
prohibited from entering your workplace or building or even engaging
yourself in any remunerative work during the suspension.
5. Please be informed that your suspension will be with full emoluments
although it may be stopped if the need arises."
This letter was signed by the DirectorGeneral.
[3] Immediately upon receipt of this letter, the applicant telephoned his
attorneys to arrange a consultation with them in order to obtain the
necessary advice on the law and also to submit the reasons why he should
not be suspended. The applicant's attorneys of record wrote a letter to
the second respondent requesting further particulars as well as an
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extension of the five day time period within which reasons were to have
been furnished. In addition thereto the reasons were requested as to
why the applicant should not be suspended. This letter was dated 27
November 1998.
According to the applicant on 4 December 1998 he was handed a letter by a
member of the Executive Council of the third respondent, purportedly
from the second respondent, acknowledging the letter from his attorneys
of record. He was also advised that his reasons not to be suspended
were taken into consideration and a decision has been taken to suspend
him from duty. The letter is dated 4 December 1998. It is addressed to
the applicant and it says:
"Dear Sir
1. A letter of intended suspension was served on you and you were further
advised to forward reasons within five working days why you should not
be suspended from duty.
2. On 27 November 1998 your response was received regarding the allegations
brought against you.
3. Your reasons have been taken into consideration but the following shall
prevail.
4. You will be suspended from duty as your presence on duty may be
prejudicial to the administration as you may interfere with the
investigation. As soon as you receive this letter you are suspended.
5. You are further advised that you are prohibited from entering all
buildings of your workplace until further notice.
6. You are further advised not to intimidate any person who has been
consulted or who will be consulted regarding the allegations brought
against you."
This letter was again signed by the DirectorGeneral.
[5] The applicant's attorneys, on 8 December, communicated a letter to the
respondents drawing their attention to certain contradictions in the
respondents drawing their attention to certain contradictions in the
above letter compared with another letter which is also dated 4 December
1998. The second letter, that is addressed to the attorneys of the
applicant reads as follows:
"Re suspension of Mr N J Mabilo
1. Your letter dated 27th November 1998 has reference.
2. We regret to inform you that we are not agreeable to your request to be
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afforded 21 working days to enable you to respond to the allegations
levelled against your client. On investigations conducted thus far we
are convinced that a prima facie case has been established against your
client, hence his proposed suspension.
3. We have reason to believe that your client's continued presence in his
employment might prejudicially hamper our continuing investigations.
4. As for the request for further particulars to the allegations levelled
against your client, kindly be advised that your client would be
formally charged soon and would thereafter be afforded ample opportunity
to request for further particulars and state his side of the case
5. Due to your client's noticeable failure to indicate as to why he should
not be suspended, your client has been suspended with full pay with
effect from the 4th December 1998.
6. Kindly note further that the proceedings are being brought in terms of the
Public Service Act, 103 of 1994, as amended."
This letter was again signed by the DirectorGeneral.
[6] It was contended on behalf of the applicant that the two letters dated 4
December 1998 were mutually contradictory of each other. The one was
submitted to the applicant himself while the other was submitted to his
attorneys of record.
[7] In terms of section 158(1)(h) of the Labour Relations Act, No. 66 of
1995 (the LRA), this court is empowered to review actions of the
State as an employer. This section reads:
"A Labour Court may review any decision taken or any act performed by
the State in its capacity as employer on such grounds as are permissible
in law."
See the case of Koka v DirectorGeneral, Provincial Administration,
North West Government (1997) 7 BLLR 874 LC. A Provincial Government is
part of the State in accordance with the Constitution of the Republic of
part of the State in accordance with the Constitution of the Republic of
South Africa, 1996.
[8] In the present application the applicant seeks the following relief:
(a) Reviewing and setting aside the decision of the respondent of 4 December
1998 or so about (sic).
(b) Uplifting the decision of the respondent to suspend the applicant's
contract of employment.
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(c) Interdicting and restraining the respondents from suspending or
terminating the applicant's contract of employment without complying
with fair labour practices.
(d) Ordering the respondent to pay the costs of this application on a
Supreme Court scale.
(e) Further and/or alternative relief.
[9] In terms of section 22 of the Public Service Act
(1) a head of department may in writing under his/her hand charge an officer
referred to in section 21 with misconduct if he or she is of the opinion
that sufficient grounds for a charge of misconduct against him or her
have been found during the investigation.
(2) If the head of department is of the opinion that an investigation in
terms of section 21 is not necessary he or she may in writing under his
or her hand charge the officer concerned with misconduct and appoint an
officer to exercise the powers of an investigating officer in terms of
section 23.
[10] There are several other subsections. It is important to note that this
particular section deals with the disciplinary action that the head of
department may take against an officer referred to in section 21.
Section 21 refers to “an officer other than a head of a department or a
member of the services or an educator or a member of the agency or the
service ...”
[11] It is also relevant for the purposes of this particular application to
have recourse to section 27 of the Public Service Act, 1994. The
heading refers to misconduct of heads of department:
"(1) (a) When a head of department is accused of misconduct, the relevant
executing authority may appoint a person to investigate the matter and
report to him or her thereon and such authority may thereupon report the
matter to the President or, in the case of a Provincial Administration,
to the Premier of the Province who may direct the said authority to
to the Premier of the Province who may direct the said authority to
charge the head of department concerned with the misconduct.
(b) ...
(2) The provisions of sections 21 to 26 shall apply mutatis mutandis to any
proceedings following upon an investigation and direction under (1)(a)
of the section ..."
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[12] The different sections set out above, envisage different processes in
the resolution of the disciplinary measures. In the present matter, we
are dealing with a head of department. Consequently, the provisions of
section 27 apply.
[13] The allegations set out in the letter to the applicant are of a serious
nature. The applicant has been suspended on full pay pending the
enquiry. In the circumstances of the present matter the employer must
be afforded an opportunity to investigate the charges in a fair and
objective manner. The employee, in my opinion, will be afforded an
opportunity to respond to the allegations once a proper charge sheet has
been drawn up. It is at this stage that the employee must be afforded a
right to be heard before a decision is taken.
[14] In the present matter the employee was afforded an opportunity to set
out reasons "as to why you should not be suspended". Instead of
acceding to this invitation the attorneys on behalf of the applicant
requested elaborate particulars to a charge sheet which was not in
existence. In addition, the attorneys requested an extension of 21 days
to furnish the reasons. The employee would be perfectly entitled to
these particulars and a reasonable time to prepare his case once the
employer has finalised the investigations and thereafter decided to
prefer charges against the employee.
[15] I am alive to the fact that the suspension in operation in the present
matter unquestionably constitutes a disruption in the life of the
applicant. In the matter of Miller and Others v The Chairman of the
Minister's Council, House of Representatives and Others (1991) 12 ILJ
761 at 775GJ Howie J says:
761 at 775GJ Howie J says:
"The implications of being deprived of one's pay are obvious. The
implications of being barred from going to work and pursuing one's
chosen calling and of being seen by the community around one to be so
barred, are not so immediately realised by the outside observer and
appear, with respect, perhaps to have been underestimated in the Swart
and Jacobs case. There are indeed substantial social and personal
implications inherent in that aspect of suspension. These
considerations weigh as heavily in South Africa as they do in other
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countries."
[16] In the case of Miller and Others ( supra) the employee was suspended
under somewhat similar circumstances to the applicant but without the
benefit of any salary during the suspension period. This case is
clearly distinguishable.
[17] In the present case I am of the view that the maintenance of the
integrity and morale of the employer, required the action taken by the
respondents. The suspension here was a necessary measure aimed at
promoting orderly administration and was required to be implemented. In
suspensions such as the present one, the employee is entitled to a
speedy and effective resolution of the dispute. Employers must not be
allowed to abuse the process. The investigation must be concluded
within a reasonable time taking all the relevant factors into
consideration and the employee must be informed without undue delay
about the process steps that the employer is initiating. This may take
the form of allowing the employee to return to his or her work or
alternatively furnish this individual with a charge sheet summoning the
individual to a properly constituted disciplinary hearing. The
disciplinary hearing must be initiated within a reasonable time of the
individual being suspended.
[18] The objects underlying the right to a speedy investigation, without
unreasonable delay, can be stated to be the following:
2.To prevent the unnecessary disruption in the life of the employee.
3.To minimise the anxiety and concern of the employee.
4.To limit the possibility that the employee will not be allowed a fair
hearing.
5.To resolve the dispute expeditiously.
[19] Mr Seima, who appeared on behalf of the applicant, referred me to the
administrative sections in the Constitution. It is clear that when
administrative sections in the Constitution. It is clear that when
interpreting any legislation it has to be done in the shadow of the
Constitution and the point was correctly made. In the circumstances, it
was submitted as I understood the argument, that the audi alteram partem
principle ought to have been adhered to at the time the decision to
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suspend the applicant was taken. The audi alteram partem maxim, (which
for the sake of brevity I will call the audi principle) was described in
the case of South African Roads Board v Johannesburg City Council 1991
(4) SA 1 (A), as follows:
"A rule of natural justice which comes into play whenever a statute
empowers a public official or body to do an act or give a decision
prejudicially affecting an individual in his liberty or property or
existing rights or whenever such an individual has a legitimate
expectation entitling him to a hearing unless the statute expressly or
by implication indicates the contrary."
[20] In my opinion the audi principle is but one facet, albeit an important
one, of the general requirement of natural justice that in the
circumstances postulated the public official or body concerned must act
fairly. In the case of Du Preez and Another v Truth and Reconciliation
Commission 1997 (4) BCLR 531 (A) at 542DI Corbett CJ states the
following:
"What does the duty to act fairly demand of a public official or body
concerned. In the answering of this question useful guidance may be
derived from some of the English cases on the subject. In Doody v
Secretary of State for the Home Department and Others (1993) All ER 92
(HL) Lord Mustel stated the following in his speech, concurred with by
the remaining members of the court, at 106DH:
'What does fairness require in the present case? My lords, I think it
necessary to refer by name or to quote from any of the often cited
authorities in which the courts have explained what is essentially an
intuitive judgment. They are far too well known. From them I derive
the following:
1. When an Act of Parliament confers an administrative power there is a
1. When an Act of Parliament confers an administrative power there is a
presumption that it will be exercised in a manner which is fair in all
the circumstances.
2. The standards of fairness are not immutable. They may change with the
passage of time both in the general and in their application to
decisions of a particular type.
3. The principles of fairness are not to be applied by a rod identically in
every situation. What fairness demands is dependent on the context of
the decision and this is to be taken into account in all aspects.
4. An essential feature of the context is the statute which creates the
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discretion as regards both its language and the shape of the legal and
administrative system within which the decision is taken.
5. Fairness will very often require that a person who may be adversely
affected by the decision would have an opportunity to make
representations on his own behalf either before the decision is taken
with a view to producing a favourable result or after it is taken with a
view to procuring its modification or both.
6. Since the person affected usually cannot make worthwhile representations
without knowing what factors may weigh against his interests, fairness
will very often require that he is informed of the gist of the case
which he has to answer.'"
[21] It is clear in that in circumstances such as the present one the need
for flexibility has to be emphasised and each case must be considered
individually.
[22] Mr Seima placed emphasis on the argument that the applicant was afforded
an opportunity to furnish reasons. Whilst being afforded an
opportunity he was not allowed to do the same. In response, as I
understood Mr Ndou's argument, he stated that after the expiry of the
time period allowed it was well assumed that reasons would not be
forthcoming, particularly in the light of the onerous demands made on
behalf of the applicant. In my view, Mr Ndou’s argument is compelling,
if this were not so, I can foresee employees frustrating the process
through spurious requests.
[23] In my opinion, and with specific emphasis to the facts of this
particular case, the employer could not be faulted in the process that
it adopted. The intention was to effectively and speedily resolve the
dispute that was on hand. This ought to have been done without any
dispute that was on hand. This ought to have been done without any
delay. Mr Ndou explained to me from the Bar that had it not been for
the launching of this particular application, the charges would have
been preferred against the applicant. However, as Mr Ndou explained,
out of respect and due reverence to this court, the respondents had
decided to allow this matter to come to an end prior to initiating any
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further steps. I cannot find fault with that response.
[24] In conclusion, I am of the view that the suspension of the applicant has
been implemented not so as to impose a discipline but for reasons of
good administration.
[25] It follows that the applicant has not made out a case for the relief
sought and in the premises the application is dismissed with costs.
__________________________
JAJBHAY AJ
ACTING JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
SIGNED and DATED on this the 30 th day of April 1999
: 22 APRIL 1999
: 22 APRIL 1999 ( EX TEMPORE )
: ADV SEIMA
: SERTI,MAVUNDLA & PARTNERS
APPEARING FOR THE RESPONDENT: MR NDOU
: NDOU ATTORNEYS
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