IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO.D.1157/99
In the matter between:
BABA ZWAKALA Applicant
and
PORT ST. JOHNS MUNICIPALITY First Respondent
THE MAYORESS: PORT ST. JOHNS
MUNICIPALITY Second Respondent
THE MEC FOR LOCAL GOVERNMENT AND
HOUSING: EASTERN CAPE PROVINCIAL
GOVERNMENT Third Respondent
J U D G M E N T
(1) The applicant is the municipal manager (this
according to the answering affidavit - the applicant describes
himself as the chief executive officer) of the Port St. Johns
municipality, the first respondent herein. On 5 October 1999
the first respondent's council suspended the applicant, on full
pay, pending the investigation of certain irregularities
involving inter alia the applicant using council funds to hire a
bus to convey mourners to his mother's funeral. In terms of
the council's letter of that date the applicant was invited to
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supply reasons by 14 October as to why the suspension
should not continue. In his response on 13 October the
applicant did not deal with the substance of the allegations
against him and confined himself to a general denial. He did
add however that he regarded his suspension as being
unconstitutional and he went on to say that it caused him
"great humiliation".
(2) The applicant referred his suspension to the Commission
for Conciliation, Mediation and Arbitration ("the CCMA") and at
the same time approached this court as a matter of urgency
for an order in the following terms:
"2.1 That applicant's purported
suspension by first respondent effected on
05 October 1999 be declared an unfair
labour practice and be set aside as being
void ab initio , improper, irregular and
unlawful.
2.2 That first and second respondent's
eviction of applicant from first respondent's
offices and the requirement that applicant
be at first respondent's premises upon being
granted permission by the council of first
respondent be declared improper, irregular,
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unlawful and unfair labour practice
deserving of being set aside.
2.3 That first respondent reinstate
applicant into his position as chief executive
officer of first respondent on terms no less
favourable than those which existed on the
05 October 1999.
2.4 That first respondent pay costs of
this application and second and third
respondents pay such costs, jointly and
severally with first respondent, only in the
event of them opposing same."
The applicant initially only asked for paragraph 2.3
to operate as an interim interdict pending the
finalisation of this application. By the time this
matter was argued before me on Friday, 22 October,
all papers had been filed and it was agreed between
the parties that I should dispose of this matter
finally.
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(3) In SACCAWU v. Shoprite Checkers (Pty) Limited
(1997)10 BLLR 130 (LC) Landman J. assumed that this court
has the necessary jurisdiction to grant interim relief pending
the finalisation of a matter which is pending before the CCMA.
The learned judge again left the matter open in Rammekwa v.
Bophuthatswana Broadcasting Corporation (1998)5 BLLR 505
(LC). In Hultzer v. Standard Bank of SA (Pty) Ltd. (1999) 20 ILJ
1806 (LC) Revelas J. held, at 1809 E, that this court does have
the power in terms of section 158(1)(a)(i) of the Labour
Relations Act 66 of 1995 ("the Act") to grant reinstatement on
an urgent basis pending proceedings before the CCMA. This
will obviously include the setting aside of a suspension. The
learned judge however went on to say the following (at 1809
F):
"The court will, however, only grant such
relief where an applicant is able to persuade
the court that extremely cogent grounds for
urgency exists."
(4) The only grounds for urgency advanced by the applicant
in his founding affidavit relate to the humiliation suffered by
him by reason of the suspension and the tarnishing of his
name which it implies. In this regard he states:
"With my continued suspension the damage
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of my name continues ceaselessly and
rumour mongering about unfounded
allegations of embezzlement involving me.
Port St. Johns is a small town and stories of
this nature immediately spread fast like veld
fire. This is occurring on a day to day basis
and is prejudicing me in my name, position
and status in the community."
(5) The difficulty I have is that almost every suspension by
reason of the investigation of allegations of misconduct would
cause this type of prejudice. This does not make the matter
urgent in the sense described above. Furthermore, urgency
can surely not be created by "rumour mongering" and
"unfounded allegations of embezzlement". Right thinking
inhabitants of Port St. Johns must know, or ought to know, that
a suspension pending further investigations is nothing more
than that. Such further investigations may establish
impropriety on the applicant's part. On the other hand they
may not.
(6) Bearing in mind particularly that the applicant's
suspension is on full pay, he has in my view a perfectly
adequate alternative remedy before the CCMA. Even if the
suspension had been without pay, this fact would not have
taken the matter much further - see University of the Western
Cape Academic Staff Union & Others v. University of the
Western Cape (1999) 20 ILJ 1300 (LC) at 1304 E-F. Mr
Mbatha, for the applicant, suggested in argument that a
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hearing before the CCMA could well take much longer than
the periods envisaged in the Act. There is no evidence before
me to support this submission and I must accept that the
matter will be dealt with expeditiously.
(7) What must also be remember that the applicant is
asking for final relief. This in effect means that he wants this
court to pre-judge the very issue which is pending before the
CCMA. This consideration will not preclude this court from
granting such relief in the proper case and the granting of
such relief will of course not bind the CCMA. The fact is
however that this is another factor that the court would in my
view consider carefully before granting an order such as the
one sought here.
(8) I am accordingly of the view firstly that the applicant
has not satisfied the test of urgency and secondly that he has
a perfectly adequate alternative remedy, namely the
arbitration proceedings by the CCMA.
(9) As regards costs I see no reason why they should not
follow the result.
(10) In the result the application is dismissed with costs.
G.H. Penzhorn, A.J.
For the Applicant:
Mr M. Mbatha of
A S M Mbatha & Company
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Durban
For the Respondent:
Adv. S V Notshe
Instructed by:
Maqiwa Zani & Dana Attorneys
King Williams Town.