Matroos v Member of the Executive Council for the Department of Transport Eastern Cape Province and Others (P 106/22) [2022] ZALCPE 28; (2023) 44 ILJ 352 (LC) (25 October 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Reportable

Case NO: P 106/22

In the matter between:

SIVE LAFIKA CEBISA MATROSS Applicant

and

MEMBER OF THE EXECUTIVE COUNCIL

FOR THE DEPARTMENT OF TRANSPORT

EASTERN CAPE PROVINCE

First Respondent

HEAD OF DEPARTMENT FOR THE DEPARTMENT

OF TRANSPORT EASTERN CAPE PROVINCE Second Respondent

COMMISSIONER, PUBLIC SERVICE COMMISSION:

EASTERN CAPE PROVINCIAL OFFICE Third Respondent

Heard: 21 October 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant's and the Respondents' legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down is deemed to be 13h00 on 25 October 2022.

JUDGMENT

[1] The applicant launched this urgent application seeking, mainly, an order in the following terms:

"1. The this application be heard as an urgent application as envisaged in Rule 6 (12) of the Uniform Rules of the Superior Courts of South African and the applicant's non-compliance with the time frames and rules of service set out in the Rules of this Honourable Court be condoned.

2. The first and second respondent are ordered to suspend the decision placing the applicant on precautionary suspension and/or uplift the precautionary suspension pending the outcome of the applicant's referral of an unfair labour practice dispute to t e General Public Service Sector Bargaining Council.

3. The first and second respondents are ordered to admit or to facilitate the readmission of the applicant back into her employment in accordance with the full terms of her employment contract with the Department of Transport Eastern Cape Province with immediate effect.

4. The relief set out in paragraphs 2 and 3 above shall operate as an interim interdict until such time as the applicant's unfair labour practice dispute pending before the General Public Service Sector Bargaining Council is finally determined by the said bargaining Council."

The application is opposed by the first and second respondent who will be referred to as the respondents in this judgment. I am indebted to both counsel for the authorities they submitted from which I relied in this judgment.

[2] The applicant is employed by the Department of Transport of the Eastern Cape Province which will be referred to as the department in this judgment. In 2018 she was the Director: Budget and Financial Planning. In May 2020 she was appointed as the Acting Chief Financial Officer for the department, a position she was permanently appointed to in on 27 January 2021 and is currently holding.

[3] The applicant traces the events which led to the filing of this application from March 2021 when she received correspondence from the second respondent removing her from the department's Bid Adjudication Committee (the .BAC) on account of her "undisclosed conflict of interest which involves your then fiancé who conducts business with an organ of state..." In August 2021 the department's Director: Legal Services advised the applicant to contact Ms Mlungwana, an investigator of the Public Service Commission (PSC) regarding a complaint she was investigating against her. A virtual meeting was held between PSC investigators and the-applicant on 23 August 2021. On 3 September 2021 the applicant furnished the PSC Investigators with the information they required in respect of a tender involving Soyama Construction Services, hereinafter referred to as Soyama, the business of her then fiance.

[4] On 3 October 2022 the applicant was suspended from work in terms of the following letter:

"1. I refer to the correspondence the MEC has received from the Public Service Commission (PSC) citing that "the preliminary findings are that the CFO is implicated in the investigation and that alone would make it difficult if not impossible for the PSC to receive the required documents that will assist the investigation" (see attached PSC correspondence)

2. In view of the PSC assertion, having discussed the matter with the MEC, and in order to allow the contemplated probe to proceed unhindered, your presence in the workplace is deemed undesirable as it is likely to jeopardise the intended probe.

3. In the result I have decided to place you on precautionary suspension with immediate effect in terms of Chapter 2 of the SMS Handbook and the SABV Long Judgment is applicable in this regard.

4. The suspension should be regarded as holding operation constitute judgment against you.

5. During the period of suspension you are prohibited from contacting

employees of the Department of Transport and services providers in your space without permission from the HoD and the Head of Legal Services." (sic)

[5] The applicant addressed a reply to the respondent seeking the upliftment of her suspension. The respondents refused to uplift the suspension in the following letter:

"1. I refer to your letter received on 04 October 2022 concerning the above matter.

2. I hereby confirm that your client has been suspended in terms of Chapter 7 of the SMS Handbook and the suspension is on full pay and associated benefits.

3. In terms of the above policy provisions, the duration of the suspension is sixty (60) days or until the finalisation of the investigation by the PSC.

4. The correspondence from PSC addressed to the MEC attached to the suspension served to your client makes it clear that the investigation by the PSC is hindered by the presence of your client in the workplace.

5. In the premises, after consultation and deliberation between myself and the MEC it was decided that the best decision under the circumstances would be to place the CFO on precautionary suspension as I have done.

6. The department stands by its decision in this regard."

[6] As a result of the respondents' refusal to uplift the applicant's suspension she referred an unfair labour practice dispute to the General Public Service Sector Bargaining Council (the bargaining council) challenging the fairness of her suspension. The applicant subsequently launched this application in which she effectively seeks an interdict compelling the respondents to uplift her suspension pending the outcome of her unfair labour practice dispute. The respondents challenged the urgency of this application. They submitted that the applicant's error of relying on Rule 6 (12) of the Uniform Rules·instead of Rule 8 of the Labour Court Rules is fatal. They further submitted that applicant delayed in bringing this application and afforded them unreasonably truncated period to file their answering affidavit. The applicant submitted that the respondent's submissions

[7] I have carefully considered the submissions on behalf of both parties on the issue of urgency. The argument advanced by Mr Madokwe for the respondents that the applicant erred in relying on a High Court Rule when the Labour Court has a rule regulating urgent applications is correct. Rule 11 of the Labour Court Rules, which permits reliance on, inter alia, the Uniform Rules is applicable in the absence of procedures not specifically provided for in the Labour Court Rules. The respondents submitted that the applicant made no averments in respect of reasons for urgency and the necessity of urgent relief. Ms Ntsepe for the applicant argued that the error in relying on the High Court Rule is not fatal to the applicant's case. I accepted her argument that when the applicant's case is considered in its totality, her success in proving urgency becomes clear. Although the incorrect rule was relied upon there was substantial compliance with Rule 8 of the Labour Court Rules.

[8] A further principle that weighed in the applicant's favour is that an application may be heard on an urgent basis when the applicant cannot obtain relief through other means. The respondent did not refute the argument on behalf of the applicant that it is only through this urgent application that she can obtain the relief of having her suspension uplifted pending the finalisation of her unfair labour practice dispute. The period between the respondents' final refusal to uplift the applicant's suspension and the filing of this application did not destroy its urgency. The allegation by the respondents that the applicant failed to act with the required urgency could not be sustained. The argument of the unreasonably short period the applicant gave the respondent to file the answering affidavit was not sustained either. As the employer party that suspended the applicant, the respondents were reasonable expected to have the necessary information at their disposal. For these reasons I am satisfied that the applicant gave valid reasons for her application to be heard urgently.

[9] Arguments advanced on behalf of the respondents included an attack on this court's jurisdiction to adjudicate this matter. In response to the challenge, I found the following dictum apposite[1]:

"[54] To answer the question that was before the court a quo, the Labour Court has jurisdiction to interdict any unfair conduct including disciplinary action. However, such an intervention should be exercised in exceptional cases. It 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.[2]"

[10] The applicant's suspension was effected in terms of clause 2.7 (2) of chapter 7 of the Senior Management Service Handbook (the SMS handbook) which provides as follows:

"(2) Precautionary suspension or transfer

(a) The employer may suspend or transfer a member on full pay if-

• The member is alleged to have committed a serious offence; and

• The employer believes that the presence of the member at the workplace might jeopardise any investigation into the alleged misconduct, or endanger the wellbeing or safety of any person or state property.

(b) A suspension ...of this kind is a precautionary measure that does not constitute a judgment, and must be on full pay.

(c) If a member is suspended ... as a precautionary measure, the employer must hold a disciplinary hearing within 60 day: The chair of the hearing must then decide on any further postponement."

[11] The essence of the applicant's case is that her suspension is unlawful and unfair in that chapter 7 does not apply, in the circumstance, alternatively, the requisites for a suspension as envisaged in clause 2.7 (2) do not exist and were not established by the department before the suspension date. It is the applicant's case that an investigation in terms of section 2.7 of chapter 7 of the SMS excludes investigations by third parties like the PSC. The applicant relied on the absence of allegations of serious misconduct against her. She further relied on the lack of detail on the investigation including its duration. The applicant submitted that the department has failed to prove the nexus between her presence at her workplace and any interference that might jeopardise the investigation. She expressed the view that the suspension is in violation-of chapter 7 of the SMS handbook as it is indefinite. She concluded that her suspension is illegal and unfair as no complaint has been raised against her and she provided all the information the PSC investigators requested from her.

[12] In determining whether the applicant has proved that she is entitled to relief pending the finalisation of her unfair labour practice dispute I have accepted that by virtue of her position, the applicant is a member of senior management. It is common cause that the provisions of the SMS handbook are applicable to her. It was the applicant's case that as the handbook mirrors the provisions of a collective agreement it was intended to be binding on employers and employees. It was therefore argued that the investigation by the PSC which resulted in the applicant's suspension falls outside the ambit of the SMS handbook as the PSC is a third party. It was argued on behalf of the respondents that the department was obliged to suspend the applicant at the behest of the PSC as the department is enjoined by section 196 (3) Constitution of the Republic of South Africa 1996 (the Constitution) to assist and protect the PSC to ensure its effectiveness.

[13] The applicant's argument that she may not be suspended as a result of an investigation conducted by the PSC, a third. party, is incorrect. The respondents argued, correctly, that in terms of section 196 (1) the constitution there is only 1 PSC for the country. Section 196 (4) of the constitution gives the PSC wide powers including the power to investigate the organisation and administration of the public service and to propose measures to ensure effective and efficient performance within the public service. Based on the department's obligation to assist the PSC and respondents' obligation not to interfere with the functioning of the PSC, the respondents cannot be faulted for taking the decision to suspend the applicant.

[14] I accept the respondents' submission that the department was informed by the PSC of the allegations that the applicant was involved in the commission of serious offences which involved the business of her husband. The allegations were attached to the applicant's letter of suspension. The validity of those allegations is not before me. It will be determined by the bargaining council when resolving the unfair labour practice dispute the applicant has referred to it.

[15] The department fulfilled the requirement of believing that the presence of the applicant at the workplace might jeopardise the PSC investigation. The belief is based on the information the department received from the PSC investigators. The belief is not unreasonable as the position of power the applicant holds enables her to act even through her juniors. It is common cause that after the intervention of the applicant's attorneys her suspension is currently on full pay.

[16] Clause 2.7 (2) (c) of chapter 7 of the SMS handbook requires an employer to hold a disciplinary hearing within 60 days of the date of suspension. Further postponements must be decided by the chairperson of the disciplinary hearing. The applicant submitted that her suspension is unfair and unlawful because it is indefinite. A concession was made on behalf of the respondents that the suspension is indeed indefinite as the respondents lack control over the investigation which is conducted by, the PSC. The conduct of suspending the applicant indefinitely is in violation of the very prescript the respondents relied upon in effecting the suspension. Clause 2.7 (2) (c) of Chapter 7 of the SMS handbook limits the period of precautionary suspension to a maximum of 60 days. The power to extend the suspension beyond that period is expressly given to the chairperson of the disciplinary enquiry that might be held. The respondents' obligation to assist the PSC fulfil its constitutional obligations is not mutually exclusive with their obligation not to violate the applicant's constitutional right to fair labour practices.

[17] The respondents did not disclose the source of their authority to suspend the applicant indefinitely. The respondents cannot exercise powers they do not have. Placing an employee on precautionary suspension serves a particular purpose which must be congruent with its duration. Notwithstanding the wide powers invested in the PSC by the constitution, those powers are not unfettered. They must therefore be exercised within the confines of the law. The suspension of an employee for an indefinite period cannot be countenanced. It constitutes gross unfairness which must be interdicted. Failure to restrain the respondents would result in grave injustice.

[18] The applicant proved her right not to be suspended indefinitely. The harm she continues to suffer as a result of the respondents' conduct is irreparable. The applicant is without effective alternative remedy and the balance of convenience favours her.

[19] The applicant sought a costs order against the respondents. Section 162·of the Labour Relations Act[3] (the Act) provides that a costs order may be granted when considerations of the law and fairness justify it. I am satisfied that it would be appropriate to grant the order against the respondents because their unreasonable failure to comply with the SMS handbook in effecting the suspension forced the applicant to launch this application.

[20] In the premises, the following order is made:

Order:

1. The non-compliance with the rules of this court is condoned and the matter is heard as one of urgency.

2. The first and second respondent are ordered to suspend the decision placing the applicant on precautionary suspension and uplift the precautionary suspension pending the outcome of the applicant's referral of an unfair labour practice dispute to the General Public Service Bargaining Council.

3. The first and second respondent are ordered to admit or to facilitate the readmission of the applicant back into her position in accordance with the full terms of her employment contract with the Department of Transport Eastern Cape Province with immediate effect.

4. The relief set out in paragraphs 2 and 3 above shall operate as an interim interdict until such time as the applicant's unfair labour practice dispute pending before the General Public Service Sector Bargaining Council is finally determined by the said bargaining council.

5. The first and second respondents are ordered to pay the applicant's costs jointly and severally the one paying the other to be absolved.

Z.Lallie

Judge of the Labour Court of South Africa

For the Applicant:

Adv. Ntsepe

Instructed by

Malusi & Co. Attorneys

c/o Bukky Olowookorun Attorneys

For the First and Second Respondent:

Adv Madokwe

Instructed by

The State Attorney- Gqeberha

[1] Booysen v The Minister of Safety and Security & Others (LAC)

[2] Wahlhaus & others v Additional Magistrate, Johannesburg & another 1959 (3) SA 133 (AD) [also reported at [1959] 3 All SA 194 (A) - Ed].

[3] Act 66 of 1995 as amended.