Manamela v Department of Co-Operative Governance Human Settlements & Traditional Affairs Limpopo Province

• Jurisdiction: South Africa
• Judge: Snyman J
• Judgment Date: 05 September 2013
• Docket Number: J 1886/2013
• Hearing Date: 29 August 2013
• Court: Labour Court

Snyman, AJ

Introduction

[1]

This matter came before me as an urgent application brought by the applicant in terms of which the applicant sought to challenge her suspension by the respondents. The applicant is seeking final relief, in terms of which the applicant seeks an order declaring that her suspension by the respondents is invalid and unlawful. The applicant further seeks an order that his suspension be uplifted with immediate effect and she be reinstated into her normal duties. Critically, and from the outset, Mr Scholtz, who represented the applicant, stated that the applicant places no reliance at all on an unfair labour practice and does not seek relief on the basis of any unfair labour practice.

[2]

These are motion proceedings in which final relief is sought. I shall thus apply the principles as to the resolution of any factual disputes between the parties in such proceedings was enunciated in Plascon Evans Paints v Van Riebeeck Paints. [1] In Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another [2] this test was aptly described, where the Court said: 'The applicants seek final relief in motion proceedings. Insofar as the disputes of fact are concerned, the time-honoured rules …. are to be followed. These are that 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.'

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[3]

When it comes to the disputed facts in this matter, the applicant's founding affidavit contains very little factual particularity and a lot of legal submissions. As opposed to this, nothing the respondents have said in their answering affidavit can be considered to be bald or fictitious or implausible or lacking in genuineness. The issues raised by the respondents in the answering affidavit are properly raised, with the necessary particularity. There is no basis or reason for me to reject any of the facts or versions of the respondents raised in the answering affidavit. I thus intend to determine this matter on the basis of the admitted (common cause) facts as ascertained from the founding affidavit, the answering affidavit and the replying affidavit, and as far as the disputed facts are concerned, on what is stated in the first respondents? answering affidavit. On this basis, I will set out the background facts hereunder.

[4]

As this matter concerns the granting of final relief, 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] Whether these requirements exist is determined, on the facts, by applying the proper factual matrix arrived at by using the Plascon Evans test enunciated above.

Background facts

[5]

The applicant is still currently employed by the first respondent as its head of department and accounting officer. The conditions of employment of the applicant are subject to specific regulatory provisions, known as the SMS Handbook. I will accept that the provisions of the SMS Handbook form part and parcel of the

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applicant's employment conditions for the purposes of the determination of this matter.

[6]

The applicant was suspended by the second respondent on 19 August 2013 by way of written notice. [4] The suspension was implemented as a precautionary measure pending disciplinary proceedings. The suspension was on full pay.

[7]

The applicant was also notified to attend a disciplinary enquiry to be held on 14 October 2013 on six charges of misconduct. [5] These charges, in terms of the notice to attend a disciplinary hearing, were very serious. The charges in essence entail what can generally be termed as tender manipulation or irregularity, in that the applicant irregularly and/or unlawfully approved tenders as listed in the disciplinary notice. The misconduct complained of clearly constitute offences with an element of dishonesty, if true.

[8]

On 22 August 2013, the applicant's attorneys wrote to the second respondent, contending that her suspension was in breach of the SMS Handbook and unlawful for four reasons, being a lack of compliance with clause 2.7(2) of chapter 7 of the SMS Handbook, the failure to adhere to the audi alteram partem principle, the purpose of the suspension having become academic and the suspension having been effected for ulterior purposes. [6] It was demanded that the suspension be uplifted by 23 August 2013 failing which the applicant would approach the Labour Court for urgent relief.

[9]

The respondents did not adhere to this demand and the current application was then brought on 23 August 2013. The grounds upon which the applicant's suspension is challenged in this application are in essence those articulated in the letter of demand

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of 22 August 2013 referred to above. Significantly, the applicant never referred an unfair suspension dispute to the bargaining council.

[10]

The respondents have stated that the applicant was suspended because of the seriousness of the charges she was facing and the possibility that witnesses could be interfered with or intimidated. The respondent was adamant that the suspension of the applicant was not disciplinary action but a precautionary measure pending the disciplinary hearing where the applicant would then face the allegations against her. The respondents have also stated that the premier had satisfied himself that all the requirements in clause 2.7(2) of the SMS Handbook had been complied with before the applicant was suspended and it was not needed to record this together with reasons for her suspension in her suspension letter.

[11]

The respondents, in their answering affidavit, provided detailed reasons as to why the applicant was suspended. [7] The first was the seriousness of the charges which negatively impacted on the department's finances and was a contravention of the Public Finance Management Act. The applicant was the HOD, and thus occupied the highest post in the department, and all the employees in this department were her subordinates. She had unfettered access to documents which could jeopardize any investigation. With the applicant present at the workplace her subordinates would not be free to volunteer information or participate in an investigation. The respondents state that if the applicant is not suspended, then vital information and documents could disappear. The respondents would need all of the mentioned information and documents to prove its case in the disciplinary hearing. It was in the public interest that this investigation be conducted unhindered and in an environment that was free and devoid of intimidation.

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[12]

According to the respondents, the fact that the disciplinary hearing has already been convened does not mean that the suspension falls away. The same precautionary requirements will apply until the hearing is concluded. The hearing was scheduled within the 60 day period allowed by the SMS Handbook. Information and documents must still be gathered for the disciplinary hearing and this process will be prejudiced with the applicant at work. The witnesses must also be protected by the applicant not being at work. The point the respondent makes is that the "investigation" does not stop with the convening of the disciplinary hearing, but is still part of the disciplinary process until completion of the hearing.

[13]

The above factual matrix forms the basis for the determination of this matter. It is clear that no exceptional circumstances or compelling considerations of urgency have been advanced by the applicant, other than the four contentions relied on.

Urgency and jurisdiction

[14]

The Court in Gcaba v Minister for Safety and Security and Others [8] said that jurisdiction means „the power or competence of a court to hear and determine an issue between parties?. In the case of applications such as the current application, in which urgent intervention in the suspension of an employee is sought, the Labour Court has the competence and power in terms of Section 158 to do so. [9] The Court in Booysen v Minister of Safety and Security and Others [10] specifically dealt with these powers and held that '…. the Labour Court has jurisdiction to interdict any unfair conduct including disciplinary action. However such an intervention should be exercised in exceptional cases. It

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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.' In Member of the Executive Council for Education, North West Provincial Government v Gradwell [11] the Court confirmed the jurisdiction of the Labour Court to entertain an urgent application specifically relating to the uplifting of a suspension, but said that it should only be entertained in „in extraordinary or compellingly urgent circumstances?. [12]

[15]

As to the issue of urgency in general, and in the...