Goba v Rand West City Local Municipality and Another (J1069/21) [2021] ZALCJHB 301 (20 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: J 1069/21

In the matter between:

THEMBA GOBA Applicant

and

RAND WEST CITY LOCAL MUNICIPALITY First Respondent

TINY SIBOKO N.O Second Respondent

Heard: 09 September 2021.

Delivered: 20 September 2021 (Due to Covid19 lockdown, this judgment was handed down electronically by sending a copy through email and the date of delivery shall be deemed to be 20th September 2021).

Summary: Urgent application – whether the suspension has lapsed automatically or not. Review – whether the second respondent is empowered to extend a precautionary suspension. The word “commence” mean furnishing the senior employee with a charge sheet. The applicant was furnished with a charge sheet within three months of his suspension – the suspension does not lapse automatically. The chairperson is empowered to make rulings which will include extension of the precautionary suspension. The decision of the chairperson is not reviewable thus, the applicant is not entitled to return to his duties. Held: (1) The application is dismissed. Held: (2) There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] Courts exist to resolve concrete controversies between litigants. This statement ought to be understood within the context of the principle applicable in motion proceedings; which is a party makes his or her case in the founding papers. In this matter, Mr Themba Goba(Goba) seeks a relief couched in the following terms:

“1. Dispensing with the requirements of Rule 7 of the Rules for the Conduct of proceedings in the Labour Court and hearing the above application on an urgent basis in terms of Rule 8 of the abovementioned Rules.

2. Reviewing and setting aside the ruling of the Second Respondent (“the Chairperson”) handed down on the 20 August 2021, which ruling extended the Applicant’s precautionary suspension.

3. Declaring the decision of the Chairperson to extent the Applicant’s precautionary suspension to be invalid.

4. Ordering the Municipality to pay the costs of this application.

5. That further and/or alternative relief that this Honourable Court deems fit and appropriate be granted to the Applicant.”

[2] Regard had to the above, it is perspicuous that Goba seeks to impugn the decision of Ms Tiny Seboko (the Chairperson), which she had made on 20 August 2021. Should this Court review and set aside the decision, it must follow that Goba must return to his position.

[3] Goba does not necessarily seek a declarator that his suspension had lapsed by application of regulation 6 (6) (a) of the Local Government;

Disciplinary Regulations for Senior Managers, 2010 (Regulations). In anticipation of argument over the meaning of regulation 6, this Court availed to the parties a judgment of the Labour Court in the matter of Ntsimane v Tshwane Municipal Council and another[1]. Such was met with an application for recusal launched on behalf of Goba. The contention being that since this Court had found in

Ntsimane that discipline commences when an employee is charged, this Court is by virtue of that finding disqualified to hear the application. Such an application was opposed by Rand West City Local Municipality (Municipality). Such an application was refused extemporaneously. In Ntsimane, the applicant had sought a declarator to the effect that his suspension had lapsed within the contemplation of regulation 6. In

casu, Goba pertinently seeks a review of a decision as well as consequential reliefs.

Background facts

[4] Goba is making a second sojourn in this Court. He was in the recent past before my Sister Prinsloo J regarding the retention of a laptop. Pertinent to this application is that Goba is employed as a Municipal Manager of the Municipality. At some point, allegations surfaced which allegations prompted the Municipality to appoint Mr Mokhare SC (Mokhare) to conduct some investigations. Such investigations were conducted. On presentation of the report of Mokhare, the council of the Municipality resolved to place Goba on a precautionary suspension.

[5] Ultimately, on 20 May 2021, Goba was placed on a precautionary suspension. In terms of regulation 6 (6) (a) if a senior manager is suspended, of which Goba was, a disciplinary hearing must commence within three months after the date of suspension, failing which, the suspension automatically lapses.

[6] On 11 August 2021, which was within the three month period contemplated in regulation 6, Goba received, through a Sheriff, a charge sheet together with a hearing date of 13 August 2021. The hearing date was ultimately re-scheduled for 19 August 2021. This date was rescheduled to 20 August 2021, owing to the fact that Goba was to make a Court appearance on 19 August 2021.

[7] On 20 August 2021, the hearing sat. Goba was not asked to plead. The Municipality placed before the chairperson an application seeking the extension of the precautionary suspension of Goba. After hearing the parties, the Chairperson ruled that the precautionary suspension is extended to 4 October 2021. Goba was aggrieved by this decision to extend the suspension. In his founding papers, he contended that his suspension lapsed automatically and that the Chairperson had no authority to extend it.

Evaluation

[8] In this urgent review, Goba contends that the decision of the Chairperson is reviewable on two bases; namely; (a) there is nothing to extend because the precautionary suspension lapsed automatically within the contemplation of regulation 6; and (b) the Chairperson lacked authority to extend. In relation to the second basis, it is not clear on the founding papers as to what Goba means by “the second respondent had no authority to extend my suspension”. This Court must assume that Goba is suggesting that since his suspension had lapsed automatically, there is no authority to extend a lapsed suspension. In motion proceedings, affidavits serve a dual purpose; as pleadings and as evidence. Where a party alleges lack of authority, such a party is obliged to set out facts upon which the alleged lack of authority is predicated. Goba did not plead any other facts other than suggesting that the process leading to the sitting of 20 August 2021 was a sham.

[9] It is not entirely understood by this Court how shammed the process is. In terms of regulation 8 (1) (a) the officer leading evidence is obligated to within 30 days of his or her appointment formulate and serve charges of the alleged misconduct in a particular format. In terms of regulation 8 (2) the charge sheet must inform the senior employee, in this case Goba of certain aspects. Notably, Goba does not suggest that the charge sheet annexed by him to his founding papers is defective in any manner contemplated in regulation 8. His only noticeable complaint was that the officer leading evidence had labelled the charge sheet a “provisional” one.

[10] Annexure D to the Regulations is a format of a charge sheet. By mere comparison of the charge sheet annexed by Goba, the charge sheet conforms to annexure D as required by regulation 8 (1) (a). Ex facie the document annexed by Goba as annexure “TG1”, it is labelled “charge sheet” and nowhere do the words “provisional” feature. The sheriff’s return states that what was served on Goba on 11 August 2021 was the notice of disciplinary hearing and charge sheet. Therefore, on the objective evidence before Court, it cannot be said that the process was a sham. Regulation 9 (1) requires that Goba must be given at least seven days before the hearing date. The hearing was scheduled for 19 August 2021. Therefore, Goba was given eight calendar days’ notice.

[11] For all the above reasons, a suggestion that the process was shammed is rejected as being without merit.

The contrive argument

[12] In his papers, Goba refers to the process leading to the sitting on 20 August 2021 as a contrived commence of a hearing. Goba takes a view that a disciplinary hearing commences once a disciplinary sitting takes place. This Court in Ntsimane reached a conclusion that a disciplinary hearing commences when a charge sheet is availed to a senior employee. On application of the Ntsimane principle, a disciplinary hearing of Goba commenced on 11 August 2021.

[13] Given the debate this Court had with Mr Mooki SC, appearing for Goba, it is necessary to state the following in addition to the reasoning exposed in Ntsimane. As Mooki SC was entitled to, he argued that Ntsimane was wrongly decided and this Court must not follow it on application of the stare decisis rule. Mr Mahlangu appearing for the Municipality urged this Court to follow Ntsimane since, in his submission, it was correct. Ntsimane concluded that it shall not follow two decisions of the Labour Court, which suggested that a hearing commences when the hearing physically sits. On the facts of this case, and on application of those two authorities, which Mooki SC submitted are correct and must be followed, the disciplinary hearing must have commenced on 20 August 2021, being the date on which the hearing first sat.

[14] Mooki SC submitted that the LAC judgment, which Ntsimane followed, was distinguishable as it was interpreting a collective agreement. When the decision of the Constitutional Court in UPSCO v SACM (Pty) Ltd[2] was drawn to his attention, which decision confirmed that the Labour Court lacks jurisdictional powers to deal with a section 24 dispute, he vaguely submitted that Matatiele was wrongly decided because it interpreted a collective agreement without powers to do so and by extension, Ntsimane is equally wrong when it followed it.

[15] To this point, this Court fails to comprehend the depth of that submission. It suffices to mention that the collective agreement that Matatiele interpreted, was couched in almost similar terms as regulation 6 (6) (a). The collective agreement employed “proceed” as opposed to “commence”.

[16] Nonetheless, in addition to the reasoning in Ntsimane, this Court states that the word commence deserve to be given its grammatical meaning. The word ‘commence’ as a verb means to begin or start. In legal process, legal proceedings are commenced by issuing a statement of claim, summons or notice of motion. When that happens, there is an external manifestation that another party is beginning to claim something from

the other party. It shall, in my view, be incongruent to suggest that the proceedings will only commence only when the matter sits for trial. Regulation 6 refers to a disciplinary hearing. The phrase disciplinary hearing has not been defined. In terms of regulation 9 a senior employee must be notified of the disciplinary hearing. The question is if disciplinary hearing will only start once the sitting happens, then regulation 9 should refer to notice of commencement of a disciplinary hearing because it shall be commencing only on the day the hearing sits. Of importance when referring to notice to disciplinary hearing, regulation 9 (1) makes specific reference to regulation 8 (3) which provides that the charge sheet contemplated in that regulation must be served together with the notification contemplated in regulation 9. If a disciplinary hearing has not commenced at that time, regulation 10 must then be headed commencement of a hearing as opposed to conducting a disciplinary hearing. One must conduct something that exists and not something that still has to exist. The word conduct means to direct the course of, manage or control. At this point of direction, management or control, the thing to be directed, managed or controlled must factually exist. Just to illustrate the point, the word commence as employed in section 24 (F) was given a statutory meaning in section 1 of National Environmental Management Act (NEMA).[3] In terms thereof, the word commence when used in chapter 5 meant the start of any physical activity on the site in furtherance of a listed activity.[4] This meaning accords with the grammatical meaning of the word.

[17] Goba must have realised that at the very least, on the strength of the two Labour Court authorities he strongly rely on, the disciplinary hearing commenced on 20 August 2021, hence he chooses to call it a contrived commence. This Court fails to observe any contrive. This must be an afterthought. Goba was served with a charge sheet that informed him of a date of a hearing, yet he chooses to ask for a postponement on 17 August 2021 in order to attend a Court matter. Surely if Goba saw the process to be a sham as he seeks to call it now, he should have objected to it and not even seek the postponement of the sitting.

[18] Accordingly, the conclusion this Court reaches is that there was no contrived commencement on 20 August 2021. Even if this Court were not to follow Ntsimane, as urged by Goba, the disciplinary hearing commenced on 20 August 2021, which is within the prescribed three month period contemplated

in regulation 6. Quintessentially, the suspension did no lapse automatically. It interesting to note that Goba shifted the goal

posts in a replying affidavit and generated a new case by seeking reliance on regulation 10 (3) (a) and contended that the commencement

happens only when the officer leading evidence reads the charge out for him. This newly generated case was not pursued with any vigour during argument by Mooki SC. Nevertheless, a similar argument was rejected by this Court in Ntsimane[5].

The authority to extend the precautionary suspension.

[19] On proper interpretation of the regulations, a suspension can only lapse automatically. Once it survives the automatic lapse, it continues or must continue until the disciplinary hearing concludes. This becomes plain when regard is had to regulation 6 (1) (b) (i). The sub-regulation refers to interference with potential witnesses as a justification to suspend a senior manager. Potential witnesses cease to be such upon conclusion of the disciplinary hearing.

[20] Regulation 6 (6) (b) prevents the council to extend the three month period. This simply means that if the council is not ready to commence with a disciplinary hearing within the three month period it cannot extend that period. The practical effect thereof is that after three months, the suspension lapses. If the requirements set out in regulation 6 (1) (a) and (b) continue to be present after the automatic lapse, a senior manager may be suspended again.

[21] In the local government sphere there are senior employees and the so-called section 57 employees and other employees below. The issue of suspension is regulated differently. The one for section 57 employees and below are regulated by a collective agreement concluded in the bargaining council. In terms of clause 16.4 of the collective agreement, where the circumstances prohibit the conclusion of the disciplinary proceedings, a suspension can be extended by a further three months period. There are no similar provisions in the regulations that regulate senior employees. It is unclear as to why such is the case. There seem to be no legal justification for this differentiation.

[22] Senior managers in the public service are regulated by the so-called SMS handbook. In terms of item 2.7 (2) (c) thereof, if a member is suspended as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement. It would have been ideal for the regulations to adopt such a provision. Nonetheless, it must follow in my judgment that in respect of senior managers, there is no fixed period for suspension. This does not imply that senior managers may remain in suspension for inordinately long period. In terms of regulation 3 (3) (b) a disciplinary hearing must be concluded within the shortest possible time. Often times this principle gets prejudiced by senior employees by approaching this Court or in some instances the High Court seeking to interdict and/or to stay the continuation of disciplinary hearings for one thing or another. In an ideal situation a disciplinary hearing of a senior employee may be concluded in a matter of weeks. However, this Court is aware of disciplinary hearings that drag for months if not years. Such is inconsistent with the principles enshrined in regulation 3.

[23] In casu, it is not in dispute that the Chairperson has extended the suspension to 4 October 2021. As indicated earlier Goba seeks a review of that extension. In this Court review powers only arise in section 145, 158 (1) (g) and 158 (1) (h) of the Labour Relations Act[6] (LRA). Sections 145 and 158 (1) (g) certainly do not find application in casu. The only section that may find application is section 158 (1) (h). This Court in SABC v Keevy and others[7] concluded that the section is reserved for the State as an employer. Therefore, an assumption may be made that the Municipality is the State and the Chairperson is acting qua State. It is settled by now that a review within the contemplation of section 158 (1) (h) is a legality review. In order to succeed Goba must show that the chairperson exercised public power or a public function.

[24] On Goba’s own version, in extending the suspension, the Chairperson exercised contractual powers emanating from clause 19 of the employment contract. On Goba’s version the Municipality could not lawfully rely on the contract to extend the suspension because the suspension ought to be sought within 60 days of his suspension as contemplated in clause 19.3 of the employment contract.

[25] Thus, it must follow that a legality review is not available to Goba. Without setting out any legal or factual basis, Goba testified that as advised the terms of the employment contract are unlawful in so far as they conflict with the regulations. Such a conflict is not spelled out and it is neither apparent. To regurgitate, the regulations allow automatic lapse if a disciplinary hearing does not commence. Once automatic lapse is not manifested, then the suspension remains. The regulations do not fix a period of the suspension.

[26] On the other hand the employment contract requires the holding of a disciplinary hearing within 60 days. In my view there is no conflict between the contract and the regulations. They simply regulate the time of holding and commencement of disciplinary hearing differently. The one states that the hearing must be held within 60 days and the other states that a disciplinary hearing must commence within three months. This implies that contractually, Goba could have sought specific performance to have the disciplinary hearing to start on 20 July 2021. He chose not to enforce that provision.

[27] The contention by Goba that the extension must be sought intra 60 days is not supported by the plain reading of clause 19.3 of his employment contract. If it did, the clause must have read “provided that the chairperson of the hearing may within the 60 days period extend such period”. Thus, on plain reading of this clause, a chairperson is empowered to at any time during the currency of the disciplinary hearing extend the suspension.

[28] In terms of regulation 10 (5) (a) (iv) the Chairperson is endowed with a discretion to at any time during the hearing make such interim determinations or rulings as he or she deems necessary. On 20 August 2021, the chairperson was asked by the Municipality to make a ruling in terms of clause 19.3 of the extant contract of employment. She duly obliged. Her ruling on that aspect is authorised by clause 19.3 read with regulation 10 (5) (a) (iv).

[29] For all the above reasons, the review application falls to be dismissed. In summary, on application of Ntsimane, the disciplinary hearing commenced within the three month period and the suspension did not automatically lapse. On application of the two authorities not followed in Ntsimane, the disciplinary hearing commenced on 20 August 2021, which is still within the prescribed period. There is no factual or legal basis to conclude that the process leading to 20 August 2021 is a sham. In extending the precautionary suspension, the Chairperson exercised contractual power and her decision is not reviewable under a legality review. Goba did not pursue a contractual claim of specific performance before this Court. Accordingly the entire application falls to be dismissed.

The issue of costs.

[30] The recent UPSCO judgment, in my respectful view, makes it entirely impossible to make an order of costs in this Court. It is interesting to note that the Constitutional Court has acknowledged that section 162 of the LRA jettisoned the ordinary rule of litigation costs following the results in favour of “law and fairness”. However, the Constitutional Court prescribed that when making costs orders in labour matters, Courts are enjoined to apply the fairness standard in the LRA as a matter of constitutional and statutory obligations.

[31] The Court proceeded to decree that in labour context, the judicial exercise of a court’s discretion requires this Court to do two things; namely (a) give reasons for firstly making an order and secondly account for the departure from the default position that costs should not be ordered; and (b) apply its mind to the dictates of only the fairness standard in section 162 of the LRA. Failure to do as decreed, this Court will be committing an error of law and a misdirection.

[32] Regard being had to the stringent decree spelled out above and in order to avoid an error of law and misdirection, it is appropriate to invoke the default position in this matter.

[33] In the results, the following order is made:

Order

1. The application is heard as one of urgency.

2. The application is dismissed.

3. There is no order as to costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Mooki SC with him Mr T Makgate.

Instructed by: Koikanyang

Attorneys, Johannesburg.

For the Respondent: Mr S Mahlangu with him Mr N Ntingane

Instructed by: Mncedisi

Ndlovu & Sedumedi Attorneys, Johannesburg.

[1] (J761/21) delivered on 10 May 2021 marked unreportable.

[2] (CCT192/20) [2021] ZACC 26 (7 September 2021)

[3] Act 107 of 1998.

[4] See Joint Owners of Remainder Erf 5216 Hartenbos v Minister for Local Government, Environmental Affairs and Development Planning Western

Cape Province and another (23635/2009) dated 2 September 2010.

[5] Para 17 of the judgment.

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

[7] [2020] 6 BLLR 607 (LC)