Dladla v National Consumer Tribunal and Another (J1535/2023) [2023] ZALCJHB 311 (10 November 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No. J1535/2023

In the matter between:

GIJIMANE JOHANNES DLADLA Applicant And NATIONAL CONSUMER TRIBUNAL First Respondent ADV. MANDLA MKHATSHWA N.O. Second Respondent

Heard: 7 November 2023

Delivered: 10 November 2023

JUDGMENT

GOVENDER, AJ

Introduction

[1] The matter before the Court is an urgent application to declare the extension of the applicant's precautionary suspension to be a breach of the terms of the contract of employment between the applicant and the first respondent, setting aside such extension of the precautionary suspension and directing that the applicant immediately resumes his duties as the Chief Operating Officer (COO) of the first respondent. Costs are sought against the first respondent on a punitive scale.

[2] The matter is opposed by the first respondent.

[3] The second respondent, who is cited in his nominee officio role as the Chairperson of the “disciplinary proceedings” has understandably not entered the fray.

[4] While the first respondent argued that a reading of the founding papers is ambivalent concerning the nature of the matter in that, reference is made to “unlawfulness”, prayer 1 of the notice of motion specifically refers to a breach of contract, and the remaining prayers do not refer to unlawfulness whatsoever.

[5] Ultimately, the first respondent takes issue with the court’s jurisdiction premised on the principle that a litigant is enjoined to plead the specific provision of the law that provides for the relevant dispute to be determined by the court[1]. Moreover, the first respondent contends that the matter is more appropriately defined as an unfair labour practice in terms of

section 186(2)(a) of the Labour Relations Act[2] 66 of 1995, as amended (LRA).

[6] The first respondent further complains that the applicant has not pleaded the relevant provisions of the law to establish the court’s jurisdiction.

[7] It is evident that the applicant has not pleaded that the dispute concerns section 77(3) of the Basic Conditions of Employment Act[3], but rather that “It is trite that this Honourable Court is empowered to determine contractual claims”[4].

[8] I return to the issue of jurisdiction and urgency later herein. I now turn to address the salient material facts.

Background facts

[9] The applicant was appointed as the COO of the first respondent on 7 June 2022.

[10] The catalyst to the present application was the applicant’s suspension on 31 July 2023. This came by way of a notice of precautionary suspension on the first respondent’s letterhead. Ultimately, the applicant was informed that allegations of serious misconduct were being investigated to establish whether there were grounds for disciplinary action. The nature of the allegations being investigated were distilled as follows in the notice of suspension:

“4. The nature of the allegations that are being investigated amongst others:

4.1 Gross misconduct in that you have acted against the best interests of the NCT in that:

4.1.1 You attempted to misrepresent and/or fabricate documentation/information in the Q1 2023/24 FY report relating to two targets, namely KPI 11 and KPI 12.

4.1.2 You attempted to tamper and/or remove evidence as alleged in 4.1.1.”

[11] The applicant does not take issue with his initial suspension in this application, while denying the allegations made against him in the said notice of suspension.

[12] A plethora of correspondence has been exchanged between the parties. Only the correspondence relevant to the extension of the suspension

will be elaborated upon in this judgment[5].

[13] On 12 October 2023 CTH Attorneys addressed a letter to the applicant’s attorneys wherein they confirmed their appointment by the first respondent to investigate the allegations and the steps taken in the investigative process at that stage.

[14] In this letter CTH Attorneys record that the investigation is likely to be finalised by the end of October or early November 2023, and depending on the outcome thereof, the first respondent would decide whether or not to institute disciplinary action against the applicant. CTH Attorneys requested that the applicant agree to remain on precautionary suspension for the duration of the investigation process, pending the finalisation of the disciplinary proceedings and required a response by 16 October 2023.

[15] On 16 October 2023 the applicant’s attorneys responded that the applicant did not agree to remain on suspension for various reasons and intended to hold the first respondent to the terms of the HR Standard Operating Procedures and Disciplinary Policy (HR SOP).

[16] On 18 October 2023 CTH Attorneys addressed correspondence to the applicant’s attorneys wherein they inter alia conveyed their instructions by the first respondent to bring an application in terms of clause 17.6.1 of the first respondent’s HR SOP.

[17] Clause 17.6.1 of the HR SOP provides as follows:

“17.6.1 If an employee is suspended as a precautionary step, the employer must hold a disciplinary hearing within 60 working days, depending on the complexity of the matter under investigation, as well as the length of the investigation. The presiding officer of the hearing must then decide on any further postponements.”

[18] In terms of clause 1.12 of the applicant’s contract of employment the first respondent’s policies were incorporated into the terms and conditions of employment. It is common cause that the provisions of the HR SOP constitute contractual terms accordingly[6].

[19] On 20 October 2023 the application to extend the applicant’s suspension (the extension application) was brought in terms of which the relief sought was for an extension of the applicant’s precautionary suspension until the finalisation of the investigation process and disciplinary process, if any. The applicant was invited to oppose the application by 12h00 on 23 October 2023.

[20] The application is addressed to the Chairperson of the disciplinary hearing, Mr Mandla Nkhatshwa, an independent advocate.

[21] The applicant takes issue with the perceived lacuna in that he had never received a notice to attend a disciplinary hearing, nor received any notification concerning the appointment of a Chairperson. In fact, so the applicant contends, because there was no disciplinary hearing, it being common cause that the investigation had yet to be finalised, there could be no disciplinary Chairperson because no disciplinary process had been initiated at that juncture.

[22] On 23 October 2023 the applicant’s attorneys sent CTH Attorneys a letter acknowledging receipt of the extension application and referring to the provisions of clause 17.6.1 of the HR SOP as they interpreted it. The applicant’s contention as per this letter was that the 60-working-day period contemplated in clause 17.6.1 would expire on Tuesday, 24 October 2023 and no disciplinary proceedings had been initiated against the applicant, because a notice to attend a disciplinary hearing as required by paragraphs 17.5.1 to 17.5.3 of the HR SOP had not been served on him. The letter concludes with the following:

“7. In the circumstances, our client’s continued suspension beyond the period prescribed by the SOP without having initiated a disciplinary hearing would be unfair, unlawful, and invalid. In this regard, please note that we hold instructions to approach the relevant forum for appropriate relief in the event that our client is unlawfully prevented from his duties when he reports for duty on Wednesday, 25 October 2023.”

[23] While clauses 17.5.1 to 17.5.3 of the HR SOP have been referred to, clauses 17.5.1 to 17.5.9 of the HR SOP warrant quotation as follows:

“17.5.1 The employee must be given a written notice of the disciplinary hearing at least five (5) working days before the date of the date of the hearing. Annexure “SOP3” may be used for this purpose.

17.5.2 The employee must acknowledge receipt of the notice by appending his / her signature to a copy of such a notice. If the employee refuses to receive such notice. If the employee refuses to receive such notice, it must be handed to the employee in the presence of a fellow employee who will confirm in writing that the notice was handed to the employee.

17.5.3 The written notice of the disciplinary proceedings must provide:

· A description of the allegations of misconduct and the main evidence on which the employer will base its case;

· Details of the time, place and venue of the hearing; and

· Information on the rights to the employee to representation by a fellow employee, or a trade union official, and to bring wellness to the hearing.

17.5.4 The disciplinary hearing must be held within 10 working days after the notice referred to in paragraph 17.5.1 and 17.5.2 is delivered to the employee.

17.5.5 The Presiding Officer of the hearing, who should be appointed by the Tribunal, must be an employee on a higher grade than the representative of the employer.

17.5.6 The executive manager of the relevant unit, in consultation with CSE and the COO, will appoint a person as Presiding Officer to Chair the Disciplinary Hearing.

17.5.7 If the employee so wishes, a fellow employee or a trade union representative may represent him / her at the hearing.

17.5.8 If necessary, and upon request by the employee, an interpreter may attend the hearing.

17.5.9 In a disciplinary hearing, neither the employer nor the employee may be represented by a legal practitioner. If the employee fails to attend the hearing and the Presiding Officer concludes that the employee did not have a valid reason for such non-attendance, the hearing may continue in the employee’s absence.[7]”

[24] It follows that all of the above provisions would similarly be contractual terms by virtue of the incorporation of policies as terms and conditions of employment.

[25] On 20 October 2023 the applicant was sent a link for the virtual hearing of the application scheduled for 24 October 2023 at 15h30. The applicant did not file any opposing papers by 23 October 2023 in terms of the truncation of time periods as per the notice of motion to the extension application.

[26] On 24 October 2023 the applicant’s attorneys were copied on an email where the HR SOP was shared with the second respondent. On 24 October 2023 the hearing concerning the extension application was heard virtually by the second respondent.

[27] The applicant did not attend the hearing. Mr Maseko for the applicant argued that the applicant would not endorse a patently invalid process by attending the hearing.

[28] The Chairperson handed down a ruling on 24 October 2023 extending the applicant’s precautionary suspension from 25 October 2023 until the finalisation of the investigation process and the disciplinary hearing. The disciplinary hearing was postponed to Friday, 17 November 2023 for purposes of receiving an update on the extent and the status of the investigation.

[29] On 27 October 2023 the second respondent handed down reasons for his extension ruling. On 30 October 2023 the urgent application before the court was brought.

[30] Importantly, while the application was set down on the urgent roll and was referred to as an urgent application there is no prayer for urgency in the notice of motion, nor that the court condone the applicant’s non-compliance with the court’s rules in terms of form and service. Moreover, there is no prayer in the notice of motion for further and/or alternative relief.[8]

[31] The first respondent argues that this omission is fatal. The first respondent was given some three days to oppose the application.

[32] I now turn to address jurisdiction and urgency.

Analysis

[33] While Mr Phillips for the first respondent referred me to the judgment Botes v COJ Property Company SOC Ltd and Another[9] in support of the first respondent’s argument that the relevant provisions of the law must be pleaded to establish jurisdiction, I think it more appropriate to consider Gcaba v Minister of Safety and Security and Others[10] where the court found as follows:

“Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not on the substantive merits of the case. If Mr Gcaba’s case was heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – include in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognizable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction. An applicant like Mr Gcaba, who is unable to pleads facts that sustain a cause of administrative action that is cognizable by the High Court, should thus approach the Labour Court.”

[34] In Netshitombeni v National Consumer Commissioner and Another[11], the court held:

“… to establish jurisdiction by virtue of section 77 (3), it was incumbent on the applicant in his founding affidavit at least to assert the existence of a contractual term entitling him to the right to a hearing prior to any termination of employment, a breach of that term by his employer and the circumstances in which he avers that he is entitled to the remedy of specific performance. For example, in the Solidarity v SABC case, as I have mentioned, the applicants specifically pleaded and introduced evidence to the effect that the right to a hearing prior to dismissal had been expressly incorporated into their contracts. In the present instance the applicant is not even gone so far as to make that assertion in ambiguous terms… ”

[35] When considering the pleadings, I am satisfied that the dispute before the court is one of an alleged breach of contract and I am satisfied that the court has jurisdiction to determine a dispute of this nature. More fundamentally, the court must determine whether the matter is truly urgent[12].

[36] The high-water mark of the applicant’s case on urgency is that his reputation and dignity are compromised for as long as his suspension endures.

[37] Concerning why he would not be able to obtain substantial redress in due course, the applicant alleges that for as long as the suspension endures the harm that he is suffering will continue and be irreparable.

[38] In Mbude v Premier of the Eastern Cape and Others[13] the court considered the following jurisprudence concerning one’s reputation being a basis for urgency:

“[16] In Zwakala v Port St John Municipality and Others, the court analysed urgency on the basis of reputation and integrity of a public figure and possible irreparable damage, as follows:

‘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” … (others) must know, or ought to know, that a suspension pending further investigation is nothing more than that. Such further investigations may establish impropriety on the applicant’s part. On the other hand they may not.’

[17] Similarly, in Mangena v Nelson Mandela Metropolitan Municipality and Another, Sandi J rejected a suggestion that a suspended employee’s dignity had been affected on the basis that the code of conduct and disciplinary procedure that formed part of his contract of employment made provision for this. In this court in Mabentsela v The Premier of the Eastern Cape Province NO and Others, Sangoni J considered and rejected the suggestion that the department and province would be detrimentally impacted by a suspension because a new manager might have less knowledge of its affairs and difficulties.

[18] The Constitutional Court has accepted that where a suspension is on full pay, ‘cognisable prejudice will be ameliorated’. The

reason for this is that a precautionary suspension is a special kind of pause pending a further enquiry. It must also be noted that, in addition to being on full pay, the applicant will have the benefit of at least the commencement of a disciplinary hearing within 60 days from the date of suspension, if in fact the investigation reveals that such a hearing is warranted.”

[39] Plainly speaking, the applicant has done no more than pay lip service to the requirements of urgency instead of providing adequate substantiation on why the matter is urgent, and why he is entitled to jump the que on egregiously truncated time periods.

[40] The first respondent contends that the applicant’s reputation is in fact not compromised by the suspension or an extension thereof, but rather the serious allegations of misconduct which hangover his head.

[41] The jurisprudence clearly states that the allegation that one’s reputation is being impaired by a suspension is not sufficient to bear out urgency. Dignity goes hand in hand with reputation in this context.

[42] While I am not entirely in agreement with the applicant’s interpretation of clause 17.6.1, because a plain reading of the provision is qualified by the complexity and length of the investigation, there is no need to go further in the circumstances where the applicant has not satisfied the court that the matter is urgent.

[43] The applicant coming to court as soon as possible addresses urgency not being self-created, but does not address urgency itself.

[44] Mr Maseko relied on the judgments in Tregea and Another v Godart and Another[14] and Martine and Trade Insurance Co Ltd v Van der Schyff[15] in support of his arguments, but unfortunately these judgments do not take the matter any further.

[45] This is on the indulgent approach of the court not adopting a formalistic approach concerning the material omission of urgency as a prayer in the notice of motion, and assessing the papers holistically to establish that the application was brought on the basis of urgency.

Costs

[46] The final consideration is costs. It is trite that in labour matters, costs do not follow the result[16].

[47] In order for costs to be granted the Court’s judicial exercise of its discretion to award costs must be engaged and there must be a justification for the departure from the ordinary rule that costs should not be ordered. The dictates of fairness in terms of section 162 of the LRA and the constitutional and statutory imperatives that underpin it, must be considered[17].

[48] While the first respondent has been brought to court on extreme urgency, I am mindful of the continued employment relationship and that the application, while lacking in clarity in many respects, was not brought frivolously or maliciously, but instead to assert the applicant’s bona fide interpretation of his contractual rights.

[49] In the premises the following order is made:

Order

1. The matter is struck from the roll for a lack of urgency.

2. There is no order as to costs.

T. Govender

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant :

J M Maseko

Instructed by:

K Mailola

For the respondent:

Jeremy Phillips

Instructed by:

CTH Attorneys

[1] Botes v City of Joburg Property Company SOC Ltd and Another [2021] 2 BLLR 181 (LC) was referred to by the first respondent in support of this argument.

[2] No. 66 of 1995, as amended.

[3] No. 75 of 1997, as amended.

[4] RA para 20, pleadings, pg.170.

[5] The correspondence prior to the CTH letter of 12 October 2023 takes issue with the alleged unlawfulness of the initial suspension and the delay in finalizing the investigation. The allegations in the correspondence must be distinguished from the pleaded facts.

[6] See: Denel (Pty) Ltd v Vorster [2005] 4 BLLR 313 (SCA).

[7] Given the seniority of the applicant, is fairly obvious that many of the provisions of the HR SOP could not be strictly complied with and would require adaptation where necessary.

[8] The court was referred to paragraphs 10 and 11 of Macaskill v SITA (Pty) Ltd and Others [2021] ZALCJHB 220 (11 August 2021) in support of the first respondent’s argument that this should be fatal to the application.

[9] [2021] 2 BLLR 181 (CC).

[10] (2010) 31 ILJ 296 (CC) at para 75.

[11] [2018] 7 BLLR 703 (LC) at para 13.

[12]See: Mogalakwena Local Municipality vs The Provincial Executive Council, Limpopo and others [2014] 4 All SA 67 (GP) at para 63 – 64; Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 26; Minister of Law and Order Bophuthatswana and Another v Committee of the Church Summit of Bophuthatswana and Others 1994 (3) SA 89 (BGD) at 99F-G; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32, where it was held; ‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’. See also: East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others (2012) jol 28244 (GSJ) at para 6 and 7, where it was held: - “The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress. It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”

[13] [2022] 9 BLLR 859 (ECB) (3 May 2022)

[14] 1939 AD 16 at 28

[15] 1972 (1) SA 26 (A) at 378-9

[16] See: MEC for Finance: Kwazulu-Natal and Another v Dorkin NO and Another [2008] 6 BLLR 540 (LAC) and Zungu v Premier of the Province of KwaZulu-Natal and Others (2018) 39 ILJ 523 (CC).

[17] Union For Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others (2021) 42 ILJ 2371 (CC), specifically at paragraph 35, read with Goba v Rand West City Local Municipality and Others [2021] JOL 51406 (LC) specifically at paragraph 30 and 31.