Temanie v Tlokwe Local Municipality and Another (J1185/13) [2013] ZALCJHB 150 (24 July 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: J1185/13

In the matter between -

TEMANIE ERROL .......................................................................................Applicant

And

TLOKWE LOCAL MUNICIPALITY ................................................First Respondent

MOUMAKWE B G ....................................................................Second Respondent

Date heard: 13 June 2013

Date delivered: 24 July 2013

Summary: Urgent application. Interdicting disciplinary proceedings and condonation in terms of clause 6.3 of the disciplinary code of the Local Municipality.

______________________________________________________________

MOLAHLEHI J

On 13 June 2013, this matter which served before this Court on an urgent basis was struck off the roll with costs. The reasons for the order are set out below.

In the urgent application the applicant sought to have the following declared invalid and unlawful:

a. de facto acting position of the second respondent as the Municipal Manager,

b. the proceedings instituted against the applicant in terms of the Disciplinary Procedure Code and Collective Agreement (the disciplinary code).

In the alternative the applicant seeks an order declaring that:

a. the first respondent be required to apply for condonation in terms of clause 6.3 of the disciplinary code if the disciplinary hearing was to proceed and further that the first respondent be interdicted from proceeding with the disciplinary hearing unless the condonation in terms of clause 6.3 of the disciplinary code was granted.

The applicant further prays that the disciplinary hearing be stayed pending the written ruling by the chairperson of the disciplinary

hearing regarding this point in limine raised by the applicant at the commencement of the disciplinary hearing. And also that the applicant is entitled to legal representation during the disciplinary hearing.

The background facts

The applicant, Mr Temanie, is an employee of the respondent employed as the Chief Administrative Officer in the office of the Executive Mayor. The dispute that gave rise to this application arose on 3 January 2013, when the applicant was issued with the notice indicating that the first respondent intended suspending him. The applicant was also issued with charges relating to gross

insubordination, fraud, dishonesty and gross financial misconduct.

On 9 January 2013 the applicant was informed of his suspension. The applicant had earlier received a notice to attend a disciplinary

hearing for the 11 April 2013. The disciplinary hearing did not proceed on that day but was rescheduled for 18 April 2013.

On 19 April 2013, the applicant attorneys of record launched an urgent application under case number J809/13 and that application

was heard on 25 April 2013.

On 25 April 2013, Moshoana AJ, made an order declaring the suspension of the applicant to be unlawful and ordered that he be

reinstated in his position.

The applicant filed an application which was heard on 30 May 2013, but that application was postponed to 6 June 2013.

At the commencement of the disciplinary hearing on 18 April 2013, the applicant raised a point in limine concerning the right of the first respondent to continue with the disciplinary hearing in light of the expiry of three months since the allegation of misconduct against him was raised in terms of clause 6.3 of the disciplinary code. The other issue raised by the applicant concerns failure by the chairperson of the disciplinary hearing to provide reasons regarding his ruling.

The applicant further complains that the chairperson denied him the right to legal representation without affording him the opportunity

to make submissions in that regard.

As concerning the acting appointment of the municipal manager the applicant testified in his founding affidavit that after the acting position of the previous Municipal Manager came to an end, and the first respondent advertised the position but that yielded no results. And thereafter, on 31 July 2012 the first respondent adopted a resolution in terms of which it was resolved to approach

the MEC of Department of Corporate Governance and Traditional Affairs and requested that a suitable person be seconded to the

first respondent to act as Municipal Manager. The request was approved by the MEC on 3 September 2012. The secondment was made in terms of section 54 A (6) (a) of the Local Government Systems Act 82 of 2000. Section 54A empowers the municipality to approach the MEC and request that a person suitably qualified be seconded to act as the Municipal Manager.

On 26 November 2012 the first respondent resolved to extend the acting secondment of the municipal manager.

Evaluation

In the recent unpublished judgment of Radebe Mthokozisi v Bulk Mining Explosives case number J1197/13, this Court in dealing with the issue of urgency held that:

“This being an urgent application the applicant needs to satisfy the Court that he has complied with the requirements set out in Rule 8 of the Rules of the Court. In terms of Rule 8(2)(a), (b) and (c) of the Rules of Court, the Rule requires for an applicant who lodges an application on an urgent basis to provide reasons why the relief is urgent, why the requirements of the Rules were not complied with and why a shorter period of notice should be permitted. The effect of this Rule, which is very similar to the Rules in the High Court, is that in an urgent application an applicant has considerable freedom to disregard the normal requirements in order to attain the redress of the complaint he or she may have. In this regard see Van Winsen, The Civil Practice of the Superior Courts of South Africa, 3ed, page 73; see also the Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972, (1) SA 773 (AD).

In my view, in order to persuade the Court that the matter is urgent the applicant must in the founding affidavit set out sufficient facts to enable the Court to decide whether urgent relief should be granted, in addition to making averments on the urgency the applicant must set out facts that would support those averments.

In dealing with this issue the Court will, of course, consider the substance of the affidavit and not the technical requirements. In other words the Court will look at the totality of the evidence set out in the founding affidavit and then from there deduct from a reasonable inference that those facts support the case for urgency.”

In the notice of motion the applicant prays that the court should dispense with the requirements of rule 7 of the Rules of this Court and that the matter be heard as one of urgency in terms of rule 8 of the Rules.

The applicant deals with the issue of urgency from paragraph 89 to 105 of his founding affidavit. In this respect the applicant deals firstly with the broad general principles governing the issue of urgency. The other point raised by the applicant is that an employer should not be allowed to flaunt the terms of an employee’s contract of employment because if that was to be allowed it would lead to chaos.

The further point made by the applicant under the heading of urgency, is that the first respondent is prohibited from proceeding

with the disciplinary enquiry after the expiry of the three months without obtaining condemnation to proceed from the Bargaining

Council.

The applicant says that the matter is urgent because:

a. The respondent may set the disciplinary hearing at any stage in the immediate future.

b. He would require legal representation due to the nature of the charges against him.

c.It would not be in the interests of the public to continue with the enquiry because it may later be rescinded.

d. The disciplinary enquiry has the potential of relating to his dismissal which if it happens will befall the provisions of section 7 of the local monies file systems act.

The applicant complains also that he would suffer prejudice relating to his promotion and performance bonuses that he would be entitled to if the disciplinary hearing was allowed to proceed.

The above do not reveal any reason why the relief is sought on an urgent basis and why the matter should be treated as one of urgency. I am also not persuaded, considering the above broadly, that a case for urgency has been made. It was for this reasons that the order below was made.

In essence the applicant’s application was struck off the roll for lack of urgency.

________________

E Molahlehi

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Scholtz of Scholtz Attorneys

For the Respondent: Adv E S J Van Graan SC instructed by Lizel Venter Attorneys.