Vilakazi v Mpumalanga Tourism and Parks Agency and Others (2024/115406) [2024] ZALCJHB 437 (22 October 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: 2024-115406

In the matter between:

MDUDUZI HERMAN VILAKAZI Applicant and MPUMALANGA TOURISM AND PARKS AGENCY First Respondent VICTOR MASHEGO Second Respondent SALOME SITHOLE Third Respondent WILLIAM LUBISI Fourth Respondent ERIC KHUMALO Fifth Respondent NOXOLO OYIYA Sixth Respondent LUNGILE MLABA-DLIDLA Seventh Respondent THENJIWE NKOSI Eighth Respondent DOCTOR MDLILI Ninth Respondent LINDIWE DIPUTLA Tenth Respondent BETGUEL SIBANYONI Eleventh Respondent RATHELELE MASIPHA Twelfth Respondent

Heard: 18 October 2024

Delivered: 22 October 2024

This judgment was handed down electronically by emailing a copy to the parties. The 22nd of October 2024 is deemed to be the date of delivery of this judgment.

JUDGMENT

ITZKIN, AJ

Introduction

[1] Mr Vilakazi, who is the Chief Executive Officer (CEO) of the first respondent (MPTA), approached this Court on an urgent basis for an order declaring that his suspension beyond a 60-day period is “irregular and unlawful”, uplifting the suspension and permitting him to return to work.

[2] The application is opposed, and a full set of affidavits (founding, answering and replying affidavits) have been exchanged.

Urgency

[3] The essential chronology of events is as follows:

3.1 On 24 July 2024, the Member of the Executive Committee (MEC) sent a letter to MPTA requiring it to investigate allegations of corruption and maladministration.

3.2 On 5 August 2024, following engagement with the MEC, a notice of suspension was issued to Mr Vilakazi. Its introductory paragraphs state the following:

‘1. Please take note that the Board has, following consultations with the Executive Authority resolved to place you on precautionary suspension from the performance of your duties as the Chief Executive Officer of the Mpumalanga Tourism and Parks Agency (MPTA). Your suspension is with immediate effect and is in accordance with section 14(3) of the MPTA Act, 2005, read with Clause 7.6.2 of the MPTA Disciplinary Code and Procedure.

2. The basis of your suspension is to allow an investigation into allegations of serious mismanagement, maladministration and/or corruption that may have occurred in MPTA's execution of its obligations as Management Authority for the Barberton Makhonjwa World Heritage Site.’

3.3 On 13 August 2024, Mr Vilakazi’s attorneys sent a letter to MPTA demanding to be furnished with the specific allegations against him and threatening an urgent application if they were not produced by 16 August 2024. On 15 August 2024, MPTA acknowledged receipt of the letter.

3.4 On 9 September 2024, Mr Vilakazi’s attorneys sent a further letter to MPTA stating that he would be resuming his duties on 17 September 2024. The letter once again threatened that an urgent application would be launched.

3.5 On 16 September 2024, MPTA responded to the 9 September 2024 letter, stating that the precautionary suspension remains in place until the completion of ongoing investigations.

3.6 On 29 September 2024, MPTA appointed SAB&T Chartered Accountants t/a Nexia SAB&T (Nexia) to investigate. This appointment was pursuant to a procurement process that was undertaken after Mr Vilakazi’s suspension.

3.7 Once a 60-day period had lapsed from 5 August 2024 (the date on which the notice of suspension was issued), on 7 October 2024, Mr Vilakazi’s attorneys sent a further letter to MPTA stating that the 60-day period had lapsed, and called for an undertaking by 8 October 2024 that he would be allowed to return to work. The letter, once again, threatened an urgent application.

3.8 On 7 October 2024, MPTA’s attorneys responded and confirmed that MPTA had procured an investigator, and that a longer period to conclude the investigations was required.

3.9 On 8 October 2024, Nexia confirmed the acceptance of their appointment.

[4] This application was launched after the exchanges detailed above.

[5] Although Mr Vilakazi’s attorneys made various earlier threats to launch urgent applications pertaining to complaints in previous correspondence, given that this application is premised squarely on the alleged unlawfulness pertaining to Mr Vilakazi’s continued suspension following the 60-day period from its commencement, I am satisfied that he has not unduly delayed the launching of this application after the 60-day period had lapsed (and the correspondence thereon had been exchanged).

[6] In addition, given that the application is premised on an allegation of unlawfulness, which is an issue that implicates the rule of law[1] and may have a detrimental impact upon the public purse (given that Mr Vilakazi is suspended on full pay, without rendering services), I am satisfied that the matter should be considered on an urgent basis.

Evaluation

[7] The founding affidavit frames the issue as follows:

‘20. This matter is brought purely on the basis of the irregular and unlawful suspension of the Applicant by the Respondents, for the period exceeding sixty (60) days, not allowed in the public service in general and by the Respondents' Disciplinary Code and Procedure of 26 January 2024...’

[8] The crisp issue in this matter, as was confirmed by Mr Vilakazi’s counsel in oral argument, thus pertains to whether or not Mr Vilakazi’s continued suspension, beyond the 60-day period, was unlawful as a result of a breach of MPTA’s Disciplinary Code and Procedure (Code).

[9] The Mpumalanga Tourism and Parks Agency Act[2] (Act) established and regulates the MPTA.

[10] Section 13 of the Act provides for the appointment of the Chief Executive Officer (CEO), whilst section 14, which is headed “Removal of Chief Executive Officer from office”, reads as follows:

‘14. Removal of Chief Executive Officer from office.

(1) The Board may, in consultation with the Member of the Executive Council, remove the Chief Executive Officer from office -

(a) on account of his or her improper conduct;

(b) for unfitness for the functions of his or her office;

(c) on the ground of a permanent infirmity of mind or body which renders him or her incapable of discharging the functions of his or her office or discharging them properly; or

(d) on the ground that he or she is or has become subject to a disqualification envisaged in section 8.

(2) The Board may, in order to determine whether there exists sufficient cause for the removal of the Chief Executive Officer from office as contemplated in subsection (1), initiate an inquiry or investigation for that purpose.

(3) Whenever any inquiry or investigation is initiated as contemplated in subsection (2) is being undertaken, the Board may, in consultation with the Member of the Executive Council, and with due regard to the provisions of the Labour Relations Act, 1995 (Act No. 66 of 1995), suspend the Chief Executive Officer from his or her office pending the outcome of such an inquiry or investigation.

(4) For the purposes of subsection (1)(a), non-compliance by the Chief Executive Officer with any provision of this Act or the Public Finance Management Act, 1999 (Act No. 1 of 1999), inter alia, constitutes improper conduct.’

[11] Section 14(3) thus provides for the CEO to be suspended pending an investigation under section 14(2), to determine whether there exists sufficient cause for the removal of the CEO from office.

[12] The Act does not impose a 60-day period pertaining to the duration of a suspension.

[13] MPTA has adopted a “Disciplinary Code and Procedure Policy” (Code) which was approved on 26 January 2024.

[14] Paragraph 7.6.2 of the Code is headed “SUSPENSION WITH PAY”. Mr Vilakazi relies on a portion thereof which states the following:

‘The following factors must be considered before an employee is suspended:

…

e) That the employer will convene a disciplinary hearing within 60 days of the date of suspension, except where the case is complex, the employer shall notify the employee about the extension.’

[15] There is no evidence that the Code is contractual in nature. Mr Vilakazi’s employment contract was not produced as an annexure to the founding affidavit; nor was it alleged that the Code was incorporated therein by reference. The answering affidavit states that the Code is not the product of a collective agreement. Clause 14 of the Code, which provides for amendment or review after three years “or as and when required and shall follow the procedure of policy formulation” also suggests that it is not contractual.

[16] It is thus evident that the requirements of the Code are not peremptory in the sense that it does not have contractual force; nor is there any other basis on which a breach thereof would render Mr Vilakazi’s suspension unlawful.

[17] Even if the Code had been peremptory, it provides for the extension of the 60-day period in complex cases, and it is clear from the evidence that this is a complex case. The 16 September 2024 letter from MPTA stating that the precautionary suspension remains in place until the completion of ongoing investigations (without limiting this to the 60-day period), thus effectively communicated that the suspension would continue beyond the 60-day period to the extent that the investigation is not completed by then. The 7 October 2024 letter from MPTA’s attorney also effectively communicated an extension.

[18] The upshot of this is that an unlawfulness claim pertaining to the suspension beyond the 60-day period is not sustainable. A claim based on unfairness is not before the Court. Such a claim (in the form of an unfair labour practice dispute) would in any event fall within the purview of the CCMA.

[19] It follows that the present application falls to be dismissed.

Costs

[20] With reference to the issue of costs, Mr Vilakazi is the most senior employee of MPTA and he ought to have recognised that the Code is not a contractual instrument (nor does it otherwise contain peremptory provisions). In addition, in the letter of 7 October 2024, MPTA’s attorney informed Mr Vilakazi (through his attorney) that this application was unnecessary, and that a costs order would be sought on a punitive scale if an urgent application was pursued. In the face of this, Mr Vilakazi launched the application. Although a costs order on a punitive scale would not be warranted, in these circumstances, a costs order in favour of MPTA is nonetheless appropriate as this application was an abuse of the Court’s processes.

[21] In the result, the following order is made:

Order

1. This matter is heard as one of urgency and the applicant’s failure to comply with the normal time periods, forms and service is condoned.

2. The application is dismissed with costs.

R Itzkin

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Instructed by: P Mbana Morathi and Mataka Attorneys For the Respondent: Instructed by: MS Mononyane MM Baloyi Attorneys

[1] See: Apleni v President of the Republic of South Africa and another [2017] ZAGPPHC 656; [2018] 1 All SA 728 (GP) at para 10.

[2] Act 5 of 2005.