Mokoena v Merafong City Local Municipality and Another (J 814/20) [2020] ZALCJHB 135; (2020) 41 ILJ 2882 (LC) (24 August 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 814/20

In the matter between:

MORAKANE NKADIMENG MOKOENA

Applicant

and

MERAFONG CITY LOCAL MUNICIPALITY

First Respondent

ADVOCATE TSUNGAI PHEHANE N.O

Second Respondent

Heard:

20 August 2020 (via Microsoft Teams)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for the hand-down is deemed to be on 24 August 2020 at 12:30

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] With this opposed urgent application, the applicant had in her initial Notice of Motion, sought a declaratory order that the disciplinary proceedings against her that took place on 11 and 12 August 2020 in her absence are invalid, unlawful and of no force and effect and be set aside; that the first to second respondents be interdicted and restrained from proceedings to issue the final verdict pursuant to that disciplinary enquiry; and directing the first and second respondents to start the disciplinary proceedings de novo.

[2] The application was brought before this Court on 17 August 2020. The second respondent issued her verdict and sanction on 17 August 2020 which copy was served on the applicant on 18 August 2020. In terms of that outcome, the applicant’s services were terminated. The applicant had on the same date, filed and delivered a supplementary affidavit. She now seeks a declaratory order that the ruling or outcome of the second respondent is invalid, unlawful and of no force and effect.

Background:

[3] The following material is common cause;

3.1 The applicant was employed by the first respondent (Municipality) as its Municipal Manager. On 13 August 2019, she was placed on precautionary suspension following a variety of allegations of misconduct against her.

3.2 On 21 August 2019, the applicant approached this Court under case number J1788/19 on an urgent basis to reverse her suspension and to interdict the disciplinary proceedings against her. That application was heard on 4 September 2019 before Prinsloo J, and judgment was delivered on 13 September 2019, in terms of which that application was dismissed with costs.

3.3 On 14 October 2019, the applicant was served with a notice of a disciplinary hearing, with twelve charges of misconduct preferred against her. The second respondent, Adv Tsungai Phehane (Chairperson) was appointed as the presiding officer of the disciplinary enquiry, while Dr A D De Swardt, the deponent to the answering affidavit, was the appointed evidence leader.

3.4 The applicant and her representative attended the pre-hearing meeting scheduled for 22 October 2019 and raised preliminary points which were dismissed by the Chairperson. The disciplinary enquiry was then scheduled to take place from 29 to 31 October 2019. Since then, the disciplinary enquiry was postponed on no less than four times.

3.5 The first postponement was sought by the applicant’s representative on 24 October 2019, on the basis that he was unavailable and unable to attend the proceedings from 29 October 2019. The Chairperson directed that the matter be heard on 30 October 2019 on which date the applicant’s representative appeared and handed in a medical certificate dated 28 October 2019, indicating that the applicant was booked off sick from 28 October 2019 until 1 November 2019. The proceedings were then postponed to 19 – 21 November 2019 by agreement.

3.6 On 18 November 2019, and a day before the agreed date, the applicant’s representative submitted a second medical certificate for the period 14 – 22 November 2019 in support of a further postponement. A copy of that certificate dated 14 November 2019, was simply emailed to the Municipality’s Executive Director: Corporate and Shared Services, Mr Hein Bredenkamp (Bredenkamp) on the afternoon of 18 November 2019, which he had then forwarded to De Swardt. De Swardt only became aware of the forwarded email in the morning of 19 November 2019. The Chairperson of the enquiry, who was then on her way to the enquiry was contacted and informed of the request for a postponement. The Chairperson issued a ruling and

postponed the hearing to 15 – 17 January 2020 by agreement.

3.7 The applicant alleges that in the morning of 15 January 2020, she woke up not feeling well and had swollen eyes. She had requested her representative to seek yet another postponement whilst she also attempted to get an appointment with a medical practitioner, which she alleged she could only secure for 12 February 2020. The Chairperson of the enquiry again postponed the matter to 15 - 17 April 2020. In her postponement ruling dated 16 January 2020, the Chairperson cautioned that should the applicant fail to make an appearance at the next hearing, the matter would proceed in her absence.

3.8 A National State of Emergency was declared from 26 March 2020 in response to the COVID-19 pandemic. De Swardt sent correspondence to the applicant and her representative on 24 March 2020, advising that as a consequence of the Lockdown, the disciplinary enquiry as scheduled for 15 - 17 April 2020 will be postponed to a date to be arranged in due course.

3.9 It is common knowledge that the period of National Lockdown was extended at varying times since March 2020. On 1 July 2020, the applicant and her representative were notified of a disciplinary hearing scheduled to take place from 14 July 2020 at the Municipality’s premises. The applicant contends that this date was not agreed to.

3.10 The applicant averred that on 10 July 2020, she had consulted with her medical practitioner who had advised her not to return to work in order to mitigate against contracting the Covid-19 virus. The applicant submitted a copy of the medical certificate dated 10 July 2020 on 13 July 2020, a day before the scheduled hearing.

3.11 The Chairperson again postponed the proceedings, and in her ruling dated 14 July 2020, she outlined and lamented the history of the postponements, the costs associated with those postponements and the fact that these defeated the objectives of expeditious resolution of disputes. The Chairperson further indicated that the postponement was a final one to be granted, and in order to prevent future postponements and to mitigate the effects of Covid-19, the proceedings were postponed to 11 – 12 August 2020, and to be conducted virtually either through Zoom Meetings or MS Teams. Again, the Chairperson reiterated that should the applicant fail to present herself at the hearing it would recommence in her absence.

3.12 On 3 August 2020, the applicant received correspondence from the Municipality confirming that the proceedings will take place via Zoom, and that the work issued laptop in her possession was set up to enable her to attend the platform. She was further advised to indicate when a Technician could visit her to ensure that her laptop was configured correctly, and to indicate how she would connect to the internet. She was also furnished with Bredenkamp’s mobile phone number to make any necessary arrangements.

3.13 On 4 August 2020, the applicant’s representative addressed a letter to the Chairperson, objecting to the convening of disciplinary proceedings via Zoom.

3.14 On 7 August 2020, the applicant’s representative had a telephone discussion with Bredenkamp, and the latter had advised him to instead speak to De Swardt in regards to matters related to the disciplinary enquiry and its arrangements, and also furnished him with De Swardt’s mobile phone number.

3.15 In the evening of 10 August 2020, a day before the hearing, the applicant’s representative sent to De Swardt and the Chairperson, an application for the recusal of the latter, alleging bias on her part. The Chairperson’s response was that any application must be brought before her at the hearing to be held via Zoom or physically at the hearing venue.

[4] There are disputes of facts in regards to what took place on 11 August 2020. What is however common cause is that neither the applicant nor her representative made an appearance on Zoom at 11h00 when the proceedings commenced. It is further common cause that neither the applicant nor her representative contacted De Swardt or the Chairperson of the hearing at any time on 11 August 2020. Contact was made by the applicant’s representative with De Swardt only on 12 August 2020 at 15h00. According to De Swardt, the following events took place during the enquiry which started at 11h30 on 11 August 2020;

4.1 The Chairperson considered the application for her recusal which De Swardt had opposed, and which was subsequently dismissed.

4.2 A plea of not guilty was noted in the absence of the applicant.

4.3 The evidence of the Executive Mayor and Acting Municipal Manager was led in support of the charges against the applicant.

4.4 After the evidence was led and following an adjournment, the applicant was found guilty on 11 out of 12 charges.

4.5 Evidence was led in regards to sanction was led by the Executive Mayor and the proceedings were adjourned for the Chairperson to consider an outcome.

4.6 The Chairperson drafted her written reasons for the finding of guilt together with her sanction of dismissal as required in terms of Regulation 10(6) of the Local Government: Disciplinary Regulations for Senior Managers, 2010 on 17 August 2020. Copies thereof were sent to all the parties in the morning of 18 August 2020.

[5] The applicant filed and served this application on 17 August 2020. In explaining the events preceding the enquiry scheduled for 11 August 2020, she averred that;

5.1 At about 19h16 on 10 August 2020, she had sent a message to Bredenkamp requesting him to send an IT Technician to her house the following morning for the purposes of setting up to enable her to attend the enquiry at 11h00 via Zoom. Bredenkamp’s response was that he would send someone.

5.2 On 11 August 2020 at 06h54, she had sent another message to Bredenkamp, advising him that she had attempted to log in but was unsuccessful as her laptop did not accept her password. She indicated that she would wait for the IT person.

5.3 Bredenkamp responded at 08h34 and advised that he was making arrangement to send the IT Technician Mr Simphiwe Ngcobo (Ngcobo) to her house to set up her laptop. The applicant also advised Bredenkamp that she had no access to Wi-Fi in order to connect. At about 10h26, Bredenkamp had again called her to inform her that Ngcobo was on his way to her house. At 11h05, Ngcobo had still not arrived at her house and she had sent Bredenkamp a message advising him that Ngcobo had still not arrived despite being furnished with directions. Bredenkamp called the applicant at 11h18 and informed him that Ngcobo was at the street of her residence.

5.4 The applicant further contends that neither the Chairperson or De Swardt had called her to establish whether she had successfully connected to Zoom, and she had however believed that that they were advised of any problems she had with connectivity by Bredenkamp.

5.5 Ngcobo arrived at her premises at about 11h30 and assured her that he was communicating with the Municipality’s Mr Leslie of the IT Department and Bredenkamp, who had undertaken to brief De Swardt and the Chairperson of any progress made in getting her connected.

5.6 At about 14h10, she had sent a message to Bredenkamp, advising him that Ngcobo was still making attempts to get her connected, which message Bredenkamp had acknowledged.

5.7 Ngcobo only managed to get her connected at 14h15, but she could still not join the hearing as the host did not let her in. Bredenkamp advised her at 14h31 that the host had left the meeting. She had attempted to join the meeting on several occasions and was ultimately advised by Bredenkamp at 15h44 that the meeting was ended.

5.8 On 12 August 2020 she had made another attempt to join the meeting and could not get through. She then advised her representative of the problems she had the previous day. The latter sent a message to De Swardt informing him about the problems and asking him what the next step was. In the afternoon of 12 August 2020, she received a message via her representative from De Swardt that the disciplinary enquiry was completed the previous day and the outcome was awaited.

5.9 Upon receipt of the above message, the applicant then sent correspondence to the Chairperson requiring a variety of information to be furnished by no later than 11h00 on 13 August 2020 failing which she would approach this Court on an urgent basis with costs.

5.10 The applicant contends that the Chairperson ‘responded in a negative and very arrogant manner’, and refused to provide her with the requested information

[6] In an answer to the above allegations, De Swardt averred that;

6.1 Despite the applicant having had his mobile phone number since 2017, at no stage on 11 August 2020 did she call him to complain about the alleged connectivity problems.

6.2 To the extent that the applicant had connectivity problems, being a highly paid employee, with a cell phone allowance, she was in a position to have arranged her own connectivity and be ready at 11h00 on 11 August 2020. In any event, the applicant was familiar with the Zoom platform or other electronic means, having used same for her Council meetings in the past. Furthermore, the process of joining a Zoom meeting was simple and uncomplicated, especially to a person familiar with the use of a computer.

6.3 If the applicant and her representative were bona fide, they could have contacted Bredenkamp from 14 July 2020 or 3 August 2020 to ensure that the Zoom platform was

correctly set up and ready for the hearing on 11 August 2020. In this case however, the applicant contacted Bredenkamp on 10 August 2020 on a public holiday and at 19h16 requesting him to send a Technician.

6.4 In anticipation of any problems, an alternative laptop with a properly configured Zoom and ready for use was made available to the applicant by Ngcobo when he reached the applicant’s residence and the latter had refused to use that alternative laptop, insisting on using her work issued laptop. Ngcobo also submitted a confirmatory affidavit to explain the events at the applicant’s premises on 11 August 2020 until 14h00.

6.5 It was not true as alleged by the applicant that Ngcobo was still busy with her laptop at 14h10 on 11 August 2020 as, he had confirmed that the laptop was ready as at 13h00, and that the applicant had again refused to connect, as she was waiting for her representative, who was not present.

6.6 Ngcobo also had to assist the applicant’s representative at about 13h00 to access the Zoom platform, and spoke to him over the phone until 14h00 as he took him through the steps of setting up Zoom and joining the hearing.

6.7 At about 14h30 during the hearing, the applicant had joined the Zoom waiting room, but the hearing had nonetheless continued, as it was already at an advanced stage.

6.8 The proceedings were completed at about 15h44. De Swardt conceded that Bredenkamp had at some point at about 15h00 informed him that there was a message from the applicant that she was waiting to be let into the meeting. He however contended that since the applicant failed to be in the meeting from 11h00 and in the light of the advanced stage of the proceedings, she was not let into

the proceedings.

[7] Ngcobo in his confirmatory affidavit confirmed that he arrived at the applicant’s residence, with a configured laptop, and his own cell phone with enough data to assist the applicant with connectivity to the Zoom meeting. He confirmed that the applicant refused to use the alternative laptop and insisted that her work issued laptop be set up for the hearing.

[8] Ngcobo further averred that the applicant also refused to use his cell phone as Wi-Fi hotspot for connectivity and insisted that her own phone be used. This was despite the fact that she did not have her own Wi-Fi at her house and her phone did not have enough data. Ngcobo had then transferred data to her phone. After the transfer, it transpired that her mobile phone was not designed to allow Wi-Fi connectivity or to make a hotspot.

[9] Ngcobo further averred that the applicant’s work issued laptop had a SIM card slot and after a spare SIM card was delivered by a colleague, it was then inserted in that laptop after data was transferred. As at 13h00, the applicant’s work issued laptop was set up and ready. She however informed Ngcobo that she was not going to join the meeting and sought to wait for her representative, whose whereabouts Ngcobo did not know. Upon contacting the applicant’s representative and taking him through the set up steps, at about 14h00, the representative told him that he still could not get through Zoom on his laptop, but was successful in doing so on his mobile phone, which was however not conducive for a meeting. Ngcobo left the applicant’s residence at about 14h35 after showing her how to join the meeting.

[10] The applicant had subsequently filed a supplementary affidavit on or about 18 August 2020, amending the relief sought in the initial Notice of Motion. She now seeks an order setting aside and declaring as invalid, unlawful and of no force and effect, the outcome of the Chairperson dated 17 August 2020.

[11] The applicant also filed a replying affidavit on the date of the hearing of this application, in which she disputes Ngcobo’s version of events, and the fact that he had also brought an alternative laptop which was ready for use.

[12] The applicant’s complaint essentially is that the proceedings ought not to have commenced or concluded in her absence in the light of the connectivity problems she had which were brought to the attention of the Chairperson and De Swardt, and further since no attempt was made to find out what her problems were.

[13] The Municipality had also filed an answer to the supplementary affidavit, and denied that the hearing was unlawful, in the light of the powers of the Chairperson under the provisions of Regulations 10(5)(iii),10(6), and 12(2) of the Regulations. It was contended that there was no basis to set aside the outcome and commence the proceedings de novo.

Evaluation:

[14] To the extent that in the supplementary affidavit the nature of the relief sought is clearly final, and further in the light of numerous disputed facts arising from the pleadings, the approach to determining the facts was authoritatively set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[1]. Thus, when factual disputes arise in circumstances where the applicant seeks final relief, the relief should be granted in favour

of the applicant only if the facts alleged by the respondent in its answering affidavit, read with the facts it has admitted to, justify the order prayed for.

[15] There are two exceptions to the general rule. The first is where the denial by a respondent of a fact alleged by the applicant is not such as to raise a real, genuine or bona fide dispute of fact. Thus, if the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and may include this fact among those upon which it determines whether the applicant is entitled to final relief[2].

[16] The second exception is where the allegations or denials of the respondent are so clearly untenable that the court is justified in rejecting them on the papers. Thus, if the respondent’s version is “so improbable and unrealistic that it can be considered to be fanciful and untenable”, then it may be rejected on the papers by adopting a “robust, common-sense approach”[3].

[17] This exception was reiterated by Harms DP in National Director of Public Prosecutions v Zuma[4] wherein he stated that motion proceedings were designed for the resolution of legal disputes based on common cause facts, and that

the general rule may not apply ‘if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious

disputes of fact, is palpably implausible, farfetched or so clearly untenable that the court is justified in rejecting them merely on the papers’[5].

[18] Without conceding that the matter is urgent, counsel for the Municipality had agreed that the merits of the application ought to be disposed of. To the extent that the events that ultimately led to this application took place on 11 August 2020, and further to the extent that this application was brought before the Court some three days later, I am satisfied that the Court can duly exercise its discretion and dispense with the requirements of Rule 7 of the Rules of this Court and dispose of the merits of the matter.

[19] Counsel for the Municipality had correctly questioned the legal basis upon which this application was before the Court. It was submitted that despite the complaint that the disciplinary hearing was invalid and unlawful, the applicant nonetheless complains about the conduct of the respondents, which at its core, the complaint is an alleged unfairness related to the commencement and completion of the disciplinary enquiry in her absence.

[20] It is settled law that the court's jurisdiction, is determined on the basis of the pleadings[6]. In Gcaba v Minister for Safety and Security (Gcaba), it was reiterated that in the event of the court's jurisdiction being challenged at the outset, the applicant's pleadings are the determining factor, as they contain the legal basis of the claim under which the applicant has chosen to invoke the court's

competence.[7] In any founding affidavit in motion proceedings, it is therefore expected that at the very least, the applicant must indicate the legal basis upon which this Court is approached for the purposes of determining whether it has jurisdiction to grant the relief sought.

[21] To the extent that the applicant seeks a declaratory order, it is accepted that this Court under the provisions of section 158(1)(iv)

of the Labour Relations Act (LRA), has powers to grant such orders. However, other than the fact that this legal basis was not pleaded, it is trite that if the court has the jurisdiction, it would have the power to grant an appropriate remedy. However, because this Court has the power to grant the remedy, it does not necessarily mean that it has jurisdiction to grant the remedy[8]

[22] As indicated, the founding affidavit does not state the basis upon which this Court has jurisdiction. In fact, there is not even a subheading on ‘Jurisdiction’ as one would ordinarily find in such founding affidavits. Only under the rubric of ‘Legal Issues’ was it indicated that at the heart of this application was the requirements of the Regulations. Particular reference was made to

Regulation 3(3), which ironically deals with discipline which was to be applied promptly, fairly, consistently and progressively. Equally referred to are Regulations 4(1) and 4(4), which deals with the institution of discipline against senior managers and the adherence to the principles of natural justice and fairness. At the core of these provisions is the concept of fairness, and already, based on these provisions, the applicant’s case is on shaky grounds.

[23] To the extent that the applicant relied on the above Regulations, her case was that she was denied a right to present her case in accordance with the audi alterem partem principle. The facts of this case as summarised elsewhere in this judgment point to a Senior Manager, who had done everything in her might, and as ably assisted by her legal representative, to avoid and obstruct the commencement, continuation and conclusion of the disciplinary proceedings.

[24] Insofar as certain allegations were made by the applicant in regards to the events of 11 August 2020, I am satisfied that based on the facts alleged by the Municipality in its answering affidavit, and the facts it had admitted to, there is no basis for granting relief in favour of the applicant. There is nothing in the allegations and denials of the Municipality based on the history and background of this matter, that suggests that its version is improbable and unrealistic, that it can be considered to

be fanciful and untenable, or that version consists of bald or un-creditworthy denials, which raises fictitious disputes of fact,

that the court is justified in rejecting them merely on the papers. My conclusions in this regard are based on the following;

24.1 The obstructive conduct of the applicant was characterised by first approaching this Court before Prinsloo J after her suspension, to interdict any disciplinary proceedings against her. The applicant contends in the replying affidavit that she was merely exercising her constitutional right in approaching the Court. Even if this right is sacrosanct, it does not imply that it should be exercised at every turn, even if there is no basis for doing so. At most Prinsloo J in her judgment made this clear when making an award of costs against the applicant.

24.2 The application above was then followed by no less than four applications for a postponement of the disciplinary enquiry. At every turn, and despite such applications being made either on the eve of the scheduled hearing on or the date of the hearing, the Chairperson indulged the applicant and her representative. The fact that such postponements came at great costs to the Municipality did not appear to bother the applicant and his legal representative at the time.

24.3 What is further extraordinary with this case is that the applicant complained of some of the rescheduled dates being imposed by the Chairperson without any agreement between the parties. The applicant remained on suspension with full pay since August 2019, which is exactly a year as at the hearing of this application. Whilst under suspension, she remained an employee subject to the discipline of the Municipality, which was entitled to schedule a disciplinary enquiry without the need to agree with her or her representative on future dates. Whilst on suspension, she remained available to subject herself to a disciplinary process at a time convenient for the Municipality, unless of course she was for some reason indisposed on the date chosen by the Municipality. The previous agreed dates, which were nonetheless not honoured, were merely out of courtesy to her and her representative which courtesy was clearly abused. There was indeed no obligation on the Municipality to agree on dates with her.

24.4 In the light of continuous postponements which indicate obstructive conduct, it is further not suggested that in instances where medical certificates were submitted, there was no need to seek a postponement. What is being emphasised is that even if there were valid medical certificates, despite these being obtained days before the scheduled enquiry, the applicant or her representative, would strategically, only submit them a day before the enquiry, or on the date of the enquiry, which in my view in the absence of an explanation from the applicant as to why those medical certificates were submitted at the belated hour, indicates mala fides on her part.

24.5 The applicant’s conduct however after the final postponement of 14 July 2020 demonstrated her outright resistance to the holding of the enquiry. Flowing from that postponement, she and her representative knew that proceedings would be held via Zoom or MS Teams. No objection was raised at the time, and no effort was made to advise the Municipality of any problems that may be anticipated in holding the hearings on a virtual platform.

24.6 Only on 4 August 2020 did the applicant’s representative raise concerns about convening the hearing on Zoom, and even then, it was only after the applicant was advised on 3 August 2020 to contact Bredenkamp should she need assistance with the setting up of Zoom. The Chairperson’s response on 7 August 2020 was that any such objections were to be placed before her at the hearing. This response in the light of the history of postponements cannot be faulted. Irrespective of the merits of the complaints against the holding of an enquiry over Zoom, these could clearly only be ventilated and addressed at the hearing before the Chairperson.

24.7 As part of the on-going strategy of obstruction and resistance to the enquiry, in the evening of 10 August 2020, and a day before the hearing, the applicant’s representative sent to De Swardt, an application for the recusal of the Chairperson, alleging bias on her part. Part of the unlawfulness claim by the applicant is that in the absence of a ruling on an application for a recusal, the Chairperson ought not to have proceeded with the hearing in her absence. Clearly this contention lacks logic, particularly since the Chairperson’s response was that such an application ought to be brought before her during the proceedings. As things turned out, both the applicant and her representative failed to make an appearance. The Chairperson’s outcome indicate that the application for recusal was dealt with and dismissed[9].

24.8 The applicant’s contentions however insofar as she alleged that she was unable to access Zoom at 11h00 on 11 August 2020, and was only able to do so at about 14h00, clearly demonstrates her mala fides. The Municipality had denied the applicant’s allegations as to the reason she could not connect to the hearing on time, and

based on Ngcobo’s confirmatory affidavit, there is no basis to reject the Municipality’s contentions that indeed, the

applicant was or ought to have been in a position to link up and join the Zoom proceedings at the time that the proceedings commenced. The basis of this conclusion is as follows;

24.8.1 In objecting to the convening of the hearings over the Zoom platform, it is clear the applicant had used such a platform before as evident from her legal representative’s submissions, who had indeed confirmed such a fact, albeit addressing the challenges posed by Zoom[10].

24.8.2 Even if for some obscure reasons the applicant could not access the Zoom platform, she had as from 14 July 2020, or at most from 3 August 2020, ample opportunity to address the problems with Bredenkamp. It is common cause that she only contacted Bredenkamp in the evening of 10 August 2020 requesting that an IT person be sent to assist her.

24.8.3 The mere fact that an objection was made to the holding of the enquiry via Zoom, which objection the Chairperson had insisted that it be dealt with at the hearing, is not sufficient for the applicant to have simply folded her arms, with the expectation that her objections would prevail, necessitating yet another postponement.

24.8.4 Any problems were anticipated by the Municipality, as Ngcobo had with him when he went to the applicant’s premises, not only an alternative laptop fully configured, but also his own phone and data for Wi-Fi connectivity. The applicant’s denials in this regard in the light of her obtuse and obstructionist approach clearly ought to be bare, and can further not be sustainable

given her own version that in her telephone conversation with Bredenkamp at 08h30 on 11 August 2020, she had made him

aware that she did not have access to Wi-Fi at her house. Why then would Ngcobo go to her house with an alternative laptop, and enough data, unless these problems were anticipated?

24.8.5 On the averments of Ngcobo, which I have no reason to doubt or reject as being improbable, the applicant unreasonably refused to utilise the alternative laptop or any Wi-Fi connectivity from Ngcobo’s phone.

24.8.6 Worst all, throughout the alleged connectivity problems that she had experienced whilst Ngcobo was at her residence, not once did the applicant make any attempt to call or contact De Swardt or the Chairperson, let alone instruct her representative to do the same, and informed them of the alleged connectivity problems. In fact, there is no indication anywhere in the founding affidavit that the representative was ready at 11h00 to join or attend the hearing. In fact, on the applicant’s own version, she was waiting for her representative, and it appears that the only time that the two of them communicated was after the representative received the message from de Swardt that the verdict was issued, and even then in the afternoon of 12 August 2020. Both the applicant and the representative had De Swardt’s mobile phone number, and none of them throughout 11 August 2020, made any effort to contact him.

24.8.7 The applicant’s contentions that she was communicating with Bredenkamp, and that she had genuinely assumed that he would have conveyed her alleged problems to De Swardt or the Chairperson are mere obfuscation and an attempt at absolving herself from her own responsibilities. By all accounts and at all material times, the duty rested on her to have contacted De Swardt long before

11h00 on 11 August 2020 or immediately thereafter if there were indeed any problems of connectivity.

24.9 In the absence of the applicant and her representative, and further in the light of no satisfactory or reasonable explanation having been proffered for her absence, the Chairperson of the enquiry was by virtue of the provisions of Regulation 10(5)(a)(iii) of the Regulations, entitled to proceed with the hearing in her absence.

[25] The above conclusion further disposes of the arguments surrounding the unlawfulness of the Chairperson’s report dated 17 August 2020 in terms of which the applicant’s dismissal was confirmed. No basis was laid for any of these contentions in the applicant’s supplementary affidavit. The fact that there was already a pending application before this Court at the time that the outcome was issued cannot lay a basis for unlawfulness or irrationality on the part of the Chairperson.

[26] Equally so, the contentions surrounding the reasons the applicant and her representative were not at the hearing via Zoom have been found to be unsound and far-fetched, and clearly the Chairperson of the Enquiry was obliged in accordance with the

provisions of Regulations 10(6) and 12(2)(a) of the Regulations, to issue an outcome on sanction within ten days of the completion of the proceedings.

[27] In the end, the averments made in the supplementary affidavit points to the complaints of the applicant falling squarely within the realm of unfairness. She contends at paragraph 12 of that affidavit that the respondents acted unfairly towards her, both in terms of the process and outcome. That outcome is a dismissal. In Edcon v Steenkamp and Others[11], it was held that;

‘The definition of dismissal is thus wide enough to include a wrongful or “invalid” termination in violation of contractual or statutory notice periods within its ambit. The word “terminated” in section 186(1)(a) of the LRA should be given its ordinary meaning of “bringing to an end”. The ordinary meaning is not coloured by the lawfulness, fairness or otherwise of the action. The fact that a remedy may exist to redress any wrongfulness or unfairness does not per se alter the consequence of an ending brought about by the employer’s action. As a rule, a wrongful or unfair termination will only be reversed (and the contractual rights and obligations restored) by the grant of the remedy of specific performance or an award of retrospective reinstatement at the discretion of the court. The resultant legal position is not unlike that prevailing in administrative law where a declaration of illegality will not have the inevitable consequence that wrongful action will be declared invalid and set aside.’ [Footnotes omitted]

[28] In the absence of a case of unlawfulness or invalidity having been made out, the Court is satisfied that since the services of the applicant have been terminated resulting from the outcome of the 17 August 2020, her remedies lie in the provisions of section 191 of the LRA.

[29] To the extent that the nature of relief sought by the applicant was final, it follows from the conclusions reached in this judgment that the requirements of such relief, viz, the existence of a clear right; an injury actually committed or reasonably apprehended; and the absence of any other satisfactory

remedy[12], have not been met. To reiterate, the applicant had not established the basis of the clear right she relied on. Any injury committed upon the applicant is clearly self-inflicted, as through her obtuse conduct, she steadfastly refused, avoided and obstructed the holding of a disciplinary hearing, and thus deprived herself of the right to be heard, and an opportunity to defend herself against the allegations of misconduct preferred against her. Further as already indicated, the applicant flowing from her dismissal has alternative remedies under the provisions of section 191 of the LRA at her disposal. It therefore follows that this application ought to be dismissed.

Costs.

[30] The Municipality seeks an award of costs against the applicant. The facts of this case clearly indicate that this urgent application lacked bona fides on all fronts, and was the culmination of the obstructive conduct of the applicant and her representative since her suspension in August 2019. The fact that there was no verdict at the time that she initially approached the Court with this urgent application as submitted on her behalf makes no difference to whether an award of costs ought to be made or not. In fact, once the verdict and sanction were pronounced on 18 August 2020, the applicant ought to have seriously reflected on the folly of this application. Clearly she failed to do so.

[31] In her judgment delivered on 13 September 2019, Prinsloo J, had pointed out that when considering an award of costs, the Court must strikes a balance between unduly discouraging parties from approaching this Court to have their disputes dealt with, and allowing parties to bring matters before the Court that are essentially non-starters. Clearly that message went unheeded by the applicant. Given the background against which this application was brought, I am satisfied that the requirements of law and fairness dictate that applicant should be burdened with the costs of this application.

[32] The Chairperson as the second respondent also sought an order of costs. This is so in that in her Notice of Motion, the applicant prayed for a costs order against both the respondents on a scale of attorney and client. That punitive cost order was sought in circumstances where the Notice of Motion did not indicate whether such costs would be sought even where there was no opposition, and further without indicating the basis upon which they were sought against the Chairperson.

[33] Other than unduly accusing the Chairperson of arrogance or having acted in an irrational and unlawful manner, without any basis for those conclusions, there is nothing in the applicant’s

papers that indicates why a costs order was sought against the Chairperson. On the contrary, the costs were still pursued against

the Chairperson in the replying affidavit, and again without laying any foundation, other than that her conduct necessitated the

application. The applicant’s posture in regards to a costs order against the Chairperson had necessitated that Ms Withaar make an appearance on her behalf, to purely to oppose an order of costs. The associated costs were unnecessarily incurred, had the applicant simply indicated in her replying or supplementary affidavit that no such costs would be pursued, or at most set out the basis upon which the costs were pursued. In the circumstances, the requirements of law and fairness dictate that the applicant be burdened with the costs of such an appearance.

[34] In the light of the overall conclusions reached in this judgment and further having had regard to the circumstances of this case, the order below is deemed appropriate:

Order:

1. The requirements of Rule 7 of the Rules of this Court are dispensed with and the matter is dealt with as one of urgency.

2. The applicants’ urgent application dismissed.

3. The applicant is ordered to pay to the costs of the First Respondent, including the costs consequent upon the employment of senior counsel.

4. The Applicant is further ordered to pay the costs of the Second Respondent, which costs are limited to counsel’s appearance in these proceedings.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:

Adv. L Seremane, instructed by Modiboa Attorneys Incorporated

For the First Respondent:

Adv ESJ Van Graan SC, instructed by De Swardt Myambo Attorneys

For the Second Respondent:

Adv. J Withaar (Appearance only in respect of costs)

[1] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634H-635C, where it was held; ‘It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact . . . If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court . . . and the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks . . . Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers . . .’

[1] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634H-635C, where it was held;

‘It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact . . . If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court . . . and the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks . . . Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers . . .’

[2] See Rail Commuters Action Group v Transnet Limited t/a Metrorail [2004] ZACC 20; 2005 2 SA 359 (CC) para 35, where the Court formulated the first exception as follows: “Where however a denial by a respondent is not real, genuine or in good faith, the respondent has not sought that the dispute be referred to evidence, and the court is persuaded of the inherent credibility of the facts asserted by an applicant, the court may adjudicate the matter on the basis of the facts asserted by the applicant.”

[2] See Rail Commuters Action Group v Transnet Limited t/a Metrorail [2004] ZACC 20; 2005 2 SA 359 (CC) para 35, where the Court formulated the first exception as follows:

“Where however a denial by a respondent is not real, genuine or in good faith, the respondent has not sought that the dispute be referred to evidence, and the court is persuaded of the inherent credibility of the facts asserted by an applicant, the court may adjudicate the matter on the basis of the facts asserted by the applicant.”

[3] See Truth Verification Testing Centre CC v PSE Truth Detection CC 1998 2 SA 689 (W) at 699F-G; NDPP v Geyser [2008] ZASCA 15 (25 March 2008) para 11; Soffiantini v Mould 1956 4 SA 150 (E)

[4] National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26

[5] At para 26

[6] See Chirwa v Transnet Ltd 2010 (1) SA 238 (CC) at 263; My Vote Counts NPC v Speaker of the National Assembly 2016 (1) SA 132 (CC) where it was held; ‘[132] A court's jurisdiction is determined on the basis of the claim in the pleadings. In Chirwa Langa CJ held that – 'a court must assess its jurisdiction in the light of the pleadings. To hold otherwise would mean that the correctness of an assertion determines jurisdiction, a proposition that this court has rejected. It would also have the absurd practical result that whether or not the High Court has jurisdiction will depend on the answer to a question that the court could only consider if it had that jurisdiction in the first place. Such a result is obviously untenable.' [133] In a unanimous judgment this court confirmed Chirwa and held that – 'Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case .... 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 - including 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, cognisable only in another court.' [Footnote omitted.]"

[6] See Chirwa v Transnet Ltd 2010 (1) SA 238 (CC) at 263; My Vote Counts NPC v Speaker of the National Assembly 2016 (1) SA 132 (CC) where it was held;

‘[132] A court's jurisdiction is determined on the basis of the claim in the pleadings. In Chirwa Langa CJ held that –

'a court must assess its jurisdiction in the light of the pleadings. To hold otherwise would mean that the correctness of an assertion determines jurisdiction, a proposition that this court has rejected. It would also have the absurd practical result that whether or not the High Court has jurisdiction will depend on the answer to a question that the court could only consider if it had that jurisdiction in the first place. Such a result is obviously untenable.'

[133] In a unanimous judgment this court confirmed Chirwa and held that –

'Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case .... 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 - including 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, cognisable only in another court.' [Footnote omitted.]"

[7] Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC) at para 75. See also Rukwaya and Others v Kitchen Bar Restaurant (2018) 39 ILJ 180 (LAC); [2018] 2 BLLR 161 (LAC) at para 8 where it was held; ‘It is an established principle of law that the question of jurisdiction is determined with reference to the allegations which are set out in the pleadings and not the substantive merits of the case. Thus, in the case of an application of this nature, the court must closely examine the contents of the founding affidavit in order to “establish what the legal basis of the applicants’ claim is”. It, however, does not behove the court to say that “the facts asserted by the applicants would also sustain another claim”. It is, therefore, vital for the court to “ascertain the true or real issue in dispute”. This would necessitate examining the substance of the dispute over the form in which it is presented. The “characterisation of the dispute by a party” is, consequently, “not necessarily conclusive…’ (Citations omitted)

[7] Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC) at para 75. See also Rukwaya and Others v Kitchen Bar Restaurant (2018) 39 ILJ 180 (LAC); [2018] 2 BLLR 161 (LAC) at para 8 where it was held;

‘It is an established principle of law that the question of jurisdiction is determined with reference to the allegations which are set out in the pleadings and not the substantive merits of the case. Thus, in the case of an application of this nature, the court must closely examine the contents of the founding affidavit in order to “establish what the legal basis of the applicants’ claim is”. It, however, does not behove the court to say that “the facts asserted by the applicants would also sustain another claim”. It is, therefore, vital for the court to “ascertain the true or real issue in dispute”. This would necessitate examining the substance of the dispute over the form in which it is presented. The “characterisation of the dispute by a party” is, consequently, “not necessarily conclusive…’ (Citations omitted)

[8] See Booysen v Minister of Safety and Security and others (2011) 32 ILJ 112 (LAC).

[9] Page 183 of the Indexed Bundle at para 13

[10] Page 197 – 198 of the Indexed Bundle of documents.

[11] 2015] 6 BLLR 549 (LAC) at para 41

[12] Setlogelo v Setlogelo 1914 AD 221 at 227; V & A Waterfront Properties (Pty) Ltd and Another v Helicopter & Marine Services (Pty) Ltd and Others 2006 (1) SA 252 (SCA) at para 20