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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Application number:  3173/2021

In the application between:

S SELEPE                                                                                                               1^st Applicant

PN DYONASE                                                                                                        2^nd Applicant

and

MOHOKARE LOCAL MUNICIPALITY                                                        1^st Respondent

NS BUYEYE                                                                                                           2^nd Respondent

E WILKEN                                                                                                             3^rd Respondent

CORAM:                        VANZYL, J

HEARD ON:                  20 JULY 2021

DELIVERED ON:         25 AUGUST 2021

[1]                     This is an urgent application in which the applicants are seeking an order in the following terms:

"1.             That the non-compliance with Uniform Rules... .in relation to timeframes, forms and services be condoned and dispensed with so that this application be heard as one of urgency.

2.                     The decision taken on 22 June 2021 by the Council of the Mohokare Local Municipality in terms of which the applicants were placed on special leave, be declared unlawful, null and void.

3.                    The decision taken on 22 June 2021 by the Council of the Mohokare Local Municipality placing the applicants on special leave, be set aside.

4.                    The respondents are directed to allow the applicants to resume their duties with immediate effect.

5.                    The first respondent, alternatively any other party opposing the relief sought, be ordered to pay the costs of the application on the scale as between attorney and client."

[2]                     The application is being opposed by the first respondent. The third respondent filed a notice to abide by the decision of the court, except in so far as the applicants may seek an order of costs against the "first to third respondents". I have not been placed in possession of a notice to abide by the second respondent. However, it is evident that the second respondent is not opposing the application.

[3]                     The first respondent has elected not to file an answering affidavit, but filed a notice in terms of Rule 6(5)(d)(iii) in terms whereof it raised "questions of law", the detail of which I will deal with shortly.

The applicants' case:

[4]                     The first applicant is the Municipal Manager and the second applicant is the Chief Financial Officer of the first respondent.

[5]                    According to the applicants the first respondent suspended the applicants under the guise of "special leave" and appointed the second and third respondents to act in their respective positions. Although the conduct of the first respondent constituted "blatant unfairness", the applicants are seeking to address the "unlawfulness" thereof.

[6]                     The applicants contend that the said special leave constituted an unlawful attempt by the first respondent to subvert the workings and mechanisms of the Labour Relations Act, 66 of 1995 (the Act), the regulations applicable to senior managers and their respective contracts of employment.

[7]                     On 24 June 2021 the applicants were informed by means of two letters from the Acting Municipal Manager, the second respondent, that they had been placed on special leave. Two similar letters, both dated 23 June 2021, were addressed to the applicants, which letters are attached to the founding affidavit as annexures "FA2" and "FA3" respectively. I will quote from the letter addressed to the second applicant:

“1. ...

2.                   At its meeting that was held on the 22nd June 2021, Council resolved to appoint the Acting CFO, Mrs Elmien Wilken for the duration of your Special Leave.

3.                   As a result of the above, this letter serves to inform you that you are placed on Special Leave effective from the 23rd June 2021 to 20^th July 2021.

4.                   During your Special Leave, you shall not come to your office or

have any contact with Municipal employees.

5.                 …”

[8]                     The applicants' attorney of record subsequently addressed two letters of demand to the first respondent, one in respect of each applicant, dated 30 June 2021, copies of which are attached to the founding affidavit as annexures "FA4" and "FA5" respectively. The said letters, inter alia, read as follows:

"It is our instructions that the Mohokare Local Municipality has placed our client on a so-called 'special leave' that amounts to a suspension.

The suspension offends against the relevant legislative framework and the rules of natural justice. The suspension is accordingly unlawful.

We do hold instructions to approach the appropriate forum to address your unlawful actions. We accordingly require that you confirm, in writing and before close of business, 2 July 2021, that our client's suspension is uplifted with immediate effect.

Should you fail to provide the above undertaking we will proceed to approach Court for urgent relief. We do hold instructions to seek a punitive costs order against the Municipality and/or relevant Councillors in their personal capacity.

We trust that you will find it so in order and look forward to your favourable response."

[9]                     The applicants received the response to the above letters of demand from the first respondent on 5 July 2021, by means of a letter attached to the founding affidavit as annexure "FA6, which letter is dated 2 July 2021, signed by the Acting Mayor. The letter was addressed to the applicants' attorney of record and refers to his letter dated 30 June 2021. The said response letter, inter alia, reads as follows:

"Kindly be advised that the municipality did not suspend your client as alleged in your letter referred above.

Your client was placed on special leave in accordance with the Municipal policy and procedures.

Special leave is regulated by the Municipal policy and can only last for a period of 20 days from the date it was issued, and with full benefits.

Your client is not suspended, as alleged, therefore the Municipality cannot uplift suspension that is not there. Your client is fully aware as a senior manager of the process relating to Special Leave, and it is under the circumstances that he is aware of, the Municipality invoked the provisions of a Special Leave." [sic].

[10]                 The applicants allege that the Regulations which deal with special leave, are only applicable to instances where a Municipal employee requests special leave. Furthermore, although the Council resolution is framed to indicate that the suspension will only be for 20 days, they have been advised that during the deliberations by Council the indication was that they would not be returning to their appointed positions.

[11]                The applicants allege that they had been advised that a Council meeting was scheduled for Tuesday, 6 July 2021, during which their suspensions were to be addressed. However, the meeting did not proceed due to disruptions. The meeting was postponed to Thursday, 8 July 2021. However, on 8 July 2021, the meeting was again disrupted and postponed indefinitely.

[12]                 The applicants' attorney of record subsequently on 9 July 2021 addressed two letters to the first respondent, attached to the founding affidavit as annexures "FA7.1" and "FA7.2" respectively. The contents of the two letters on behalf of the respective applicants are similar:

"Our instructions and understanding was that the Council will meet on Tuesday, 6 July 2021 to resolve the issues addressed in previous letter.

Said meeting was postponed to Thursday, 8 July 2021, however we were now informed the meeting was postponed indefinitely.

In light of the above, we demand that you comply with our previous letter before or on Monday 12 July 2021 at 10h00, as failure to do so will leave us with no further choice than to proceed with an urgent application.

We await your urgent response."

[13]                 The first respondent responded to the aforesaid letters by means of a letter addressed to the applicants' attorneys of record, which letter is not dated and again signed by the Acting Mayor, attached to the founding affidavit as annexure "FA7.3". The contents of the said letter read as follows:

"We confirm receipt of your letter dated 09 July 2021, and note the contents thereof.

Kindly be advised that your client was placed on a special leave by the Municipal Council. The decision to place your client on a special leave, constitute a Council resolution, which resolution can be reconsidered by the Municipal Council, and on terms and conditions determined by the that structure. [sic].

Myself as the Acting Mayor am duty bound and/or have a legislative responsibility in terms of the Local Government: Municipal Systems Act to implement the decision of the Political Structure as defined in the Local Government: Municipal Structures Act.

In light thereof your demand requires of me to act against the resolution of the Municipal Council, at best your client should wait for the Municipal Council to sit on his matter and issue further instructions, which instructions we believe will give further instruction on what need to be done in line with your client's matter.

It should further be noted that myself as Acting Mayor am not above the Municipal Council, and cannot by law change Council resolution.

I trust that the above will be in order in as far as your client issues are concerned."

[14]                 With regard to the aforesaid response from the first respondent, annexure "FA7.3", the applicants allege as follows in the founding affidavit:

"24.   ... The response is non-sensical to say the least. The Court will note that a final and clear indication was given by the Acting Mayor that they have no intention of following the correct procedures and in fact stand behind the original unlawful decision to place ourselves on special leave. We thus had no option but to proceed with this application.

25.       We placed our hope in the Council meeting to correct its wrong, but due to the continued disruption and the meeting being postponed indefinitely, this will not suffice as an alternative remedy."

[15]                 According to the applicants the regulations pertaining to senior managers are very clear with regard to the circumstances in which senior managers can be suspended and the procedure to be followed.   Those prescribed procedures were not followed in the present matter.

[16]                 The applicants aver that they are suffering irreparable harm to their dignity and freedom to work. They are furthermore suffering reputational damages due to the first respondent's unlawful actions.

[17]                 The applicants conclude their founding affidavit by stating the following in paragraph 30 thereof:

"The Municipality's actions are unlawful and illegal. They are directly at odds with the relevant legislation and statutory framework. The allegation that special leave could be forced upon us is untenable and wrong. It gives traction to our argument that the Municipality is trying to sidestep and subvert the rights afforded to us by way of contract."

The first respondent's case:

[18]                 The first respondent's opposition to the application is set out in its notice in terms of Rule 6(5)(d)(iii), in terms whereof the first respondent indicated that it will raise the following questions of law:

"1.            That the exigencies of the matter in question are not commensurate with the purported degree of urgency thereof and/or with the degree of deviation from the Rules pertaining to time and service. In this regard the respondent intends to submit that:

1.1                The applicants' alleged urgency is self-created; and

1.2                The applicants have failed to make out any case why the applicants will be unable to obtain substantial redress at a hearing in due course.

2.                     Ex facie paragraphs 12 and 13 of the applicants' founding affidavit, it is evident that the applicants contend that:

2.1                    The applicants have been unlawfully suspended under the guise of 'special leave'; and

2.2                    In perpetrating the aforesaid purported wrong, the first respondent has sought to subvert the workings and mechanisms of the Labour Relations Act, 66 of 1995 ('the LRA') and the regulations applicable to senior managers.

3.                    In respect of the aspects set out in paragraph 2 above, it will be submitted by the first respondent that the actions which the applicants seek to impugn fall squarely within the definition of an unfair labour practice as set out in section 186(2) of the LRA. In the premises, in terms of section 191 of the LRA, read with sections 157, 158 and 193 of the LRA, this court does not have jurisdiction to adjudicate this application.

4.                    The applicants have failed to make out a case that exceptional circumstances exist upon which the court will intervene in the dispute between the parties. In this regard, the first respondent shall rely, inter alia, on the dictum set out in Booysen v Minister of Safety and Security & Others, (2011) 32 ILJ 112 (LAC) at para 54.

5.                    The first respondent will in any event advance that the High Court does not have jurisdiction to adjudicate upon the matter."

Ad urgency:

[19]                 The applicants were informed on 24 June 2021 about them having been placed on special leave. In paragraph 22 of the founding affidavit the applicants, under the heading of urgency, inter alia stated as follows:

"Subsequent to us receiving the letters of suspension we consulted with our attorney of record. We were advised to firstly correspond with the Municipality and show it the error of its ways an attempt to come to an amicable resolution to the problem. I have indicated the various correspondence relevant herein, above."

[20]                 As correctly pointed out by Mr van der Merwe, who appeared on behalf of the first respondent, the applicants did not explain the time delay between 24 June 2021, when they were informed about the decision, and 30 June 2021, being the date of the letters of demand sent by the applicants' attorney of record.

[21]                 However, in the last-mentioned letters of demand, the date of 2 July 2021 was indicated as the deadline, which date fell on a Friday. No response was forthcoming, but on Monday, 5 July 2021, the applicants received the response letter from the first respondent (dated 2 July 2021). In the said response the first respondent indicated that the applicants had not been suspended but had been placed on special leave "in accordance with the Municipal policy and procedures".

[22]                 Mr van der Merwe submitted that one would have expected that the applicants would in those circumstances have, at the latest, filed the urgent application on Monday, 5 July 2021. However, in my view their failure to have done so is explained in paragraph 21 of the founding affidavit, where the applicants stated as follows:

"We were advised that a council meeting was scheduled for Tuesday, 6 July 2021, wherein our suspensions were to be addressed. The meeting did not proceed due to disruptions. The meeting was postponed to Thursday, 8 July 2021. However, on Thursday, 8 July 2021, the meeting was again disrupted and postponed indefinitely."

[23]                 Mr van der Merwe submitted that the aforesaid allegations constitute hearsay evidence and that the applicants can consequently not rely on the said allegations. However, as correctly pointed out by Mr Louw, who appeared on behalf of the applicants, the applicants' attorney of record in his second letter of demand, dated 9 July 2021, specifically referred to the two council meetings of 6 July 2021 and 8 July 2021 respectively, and the fact that they had been disrupted. The said allegations were not denied in the subsequent letter of the first respondent, attached to the founding affidavit as annexure "FA7.3", which letter, although not dated, specifically refers to the letter of 9 July 2021 and that the contents thereof had been noted. I have to agree with the contention by Mr Louw that the truth and correctness of the said hearsay allegations are to be considered to have been confirmed given the contents of the letter from the first respondent (annexure "FA7.3").

[24]                 Since the deadline in the second set of letters of demand, dated 9 July 2021, was 12 July 2021 at 10h00, the application was subsequently issued on 12 July 2021.

[25]                 Mr Louw submitted that when a senior manager is suspended, it equates to an arrest. In this regard he relied on the judgment in South African Municipal Workers Union obo Matola v Mbombela Local Municipality [2015] JOL 32540 (LC), in which judgment the Court found that it was unlawful to label a suspension as "special leave" and subsequently found as follows at paragraph [25] of the judgment:

"It is apparent from the reading of the various judgments of this Court that suspension is a serious matter which has serious implications for the employee. It is for this reason that suspension has be equated to an arrest... "

[26]                In Chanda v Ratlou Local Municipality [2019] JOL 41568 (LC) the Labour Court dealt with the issue of urgency in circumstances similar to the present application, as follows:

"[6]     Various defences raised in opposing this application clearly have not merit:

6.1 The first is that the respondent's contentions that the application is not urgent is misplaced....

6.21 The facts of this case given the issues raised in the founding affidavit and the responses thereto, also give rise to the need for it to be treated with urgency. In particular, as shall be demonstrated in the course of this judgment, the 'forced special leave', which is essentially in a guise of a suspension, is so patently unlawful, and there is clearly no basis for any conclusion to be reached that the urgency claimed in this case is self-created, particularly since the applicant had established a clear right to the relief that he seeks."

[27)          In the circumstances I am satisfied that the applicants made out a proper case for urgency and consequent condonation as requested in prayer 1 of the notice of motion.

Ad jurisdiction:

[28)   It is evident from the founding affidavit that it is the applicants' case that by having placed the applicants on special leave, the first respondent's conduct was unlawful and illegal for want of compliance with the Local Government: Disciplinary Regulations for Senior Managers 2010. In this regard it is the applicants' case that the said Regulations do not provide for Senior Managers to be placed on "special leave" on the initiative of the employer. It is further the applicants' case that the first respondent suspended them under the guise of "special leave" without having followed the prescribed procedure for purposes of suspension.

[29]                 In Shezi v SA Police Service (2021) 42 ILJ 184 (LC) the applicant, a Divisional Commissioner of the South African Police Service's technology management services approached the Labour Court on an urgent basis contending that a disciplinary hearing which was instituted against her in terms of Regulation 9 of the South African Police Service's Discipline Regulations, was unlawful, illegal and in violation of the South African Police Service's Discipline Regulations. In their opposition to the application, the respondents objected to the jurisdiction of the Labour Court, the issue being "whether the court has jurisdiction to entertain a claim for final relief where an applicant seeks relief on the basis of what is alleged to be unlawful conduct on the part of the employer, without locating the claim in a cause of action justiciable" by the said court. The court found as follows at paras [11] and [12]:

"[11] In so far as the applicant's cause of action is the alleged unlawfulness of the respondents' conduct, the question is whether the court has jurisdiction to make such a determination. In Steenkamp & Others v Edcon Ltd (National Union of Metalworkers of SA intervening) 2016 (3) SA 251 (CC) ... the appellants contended that their dismissals by the respondent were unlawful and invalid because their employer had not complied with time periods established by s 189A of the LRA prior to issuing notices of termination of employment. The majority of the Constitutional Court rejected this contention, on the basis that this court has no jurisdiction to determine the lawfulness of a dismissal. ...

[12]        The effect of this judgment is that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy under the LRA and this court has no jurisdiction to make any determination of unlawfulness "

The court consequently concluded as follows at para [23]:

"[23]         To the extent that the applicant's case is one that challenges the lawfulness of her employer's conduct in the form of an alleged breach of regulation 9, this court has no jurisdiction to entertain the claim "

[30]                 In  Botes  v City of Johannesburg Property Court SOC Ltd, (2021) 42 ILJ 530 (LC) the applicant was regarded as a senior employee and the terms of the Local Government: Disciplinary Regulations for Senior Managers were made applicable to her. In the said application regulation 6, which deals with precautionary suspensions, was of the essence. The respondents took issue with the jurisdiction of the Labour Court. The court, inter alia, found as follows at paras [13] - [16]:

"[13]         ... if the legislature wished to clothe any of the dispute-resolving bodies including the Labour Court with powers to entertain the lawfulness of the suspension, the legislature could have said so. The conclusion I arrive at is that the claim of Botes cannot be entertained under s 157(2).

(14]         …

[15]         …

[16]          The case pleaded by Botes is that of unlawfulness and not unfairness.   To that end I fully endorse the view expressed by my brother Van Niekerk J in Shezi v SA Police Service when he said:

'The effect of this judgment [Steenkamp  v Edcon] is that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy under the LRA and this court has no jurisdiction to make any determination of unlawfulness.'"

[31]                 Mr Van der Merwe strongly relied on the judgment in Booysen v Minister of Safety (2011) 32 ILJ 112 (LAC) in support of the first respondent's contention regarding the alleged lack of jurisdiction of this court to entertain the application.  However, in my view a proper reading of paragraph [17] and further of the aforesaid Shezi-judgment, which paragraphs deal with the Booysen-judgment, establish why this ourt has jurisdiction to adjudicate this application.

[32]                 I consequently conclude that this court does have jurisdiction to entertain the application.

Ad merits:

[33]                 I have already indicated that the first respondent only filed a notice in terms of Rule 6(5)(d)(iii) and consequently opted not to file an answering affidavit. The allegations contained in the founding affidavit therefore stand uncontested.

[34]                 The Local Government: Disciplinary Regulations for Senior Managers, issued under section 120 of the Local Government: Municipal Systems Act, 32 of 2000, published under GN 344 in Government Gazette 34213 of 21 April 2011, do not make provision for an employer to place an employee on special leave.

[35]                 Regulation 6 does make provision for precautionary suspension, but not only did the first respondent not follow the correct process for purposes thereof, but it is also evident from the letters attached to the founding affidavit that it is not the first respondent's case that it placed the applicants on precautionary suspension. Even if the application is to be adjudicated on the basis that the first respondent intended to place the applicants on precautionary suspension, its failure to have complied with the correct process as provided for in Regulation 6, in any event makes the conduct of the first respondent unlawful and its decision consequently stands to be set aside. See Lebu v Maquassi Hills Local Municipality & Others (2) (2012) 33 ILJ 653 (LC) at paras [3], [11] and [17], whereupon the applicant's suspension in that matter was declared unlawful and set aside.

[36]                 In my view the applicants are consequently entitled to the relief they are seeking.

Costs:

[37]                 In the Notice of Motion the applicants sought costs against the first respondent and/or against any of the respondents who may oppose the application, on the scale as between client and attorney.

[38]                 As mentioned earlier in the judgment, only the first respondent opposed the application. With regard to the request for a punitive costs order, I cannot find that a proper case has been made out in the founding papers for such an order.

[39]                 There is however no reason why costs should not follow the outcome of the application.

Order:

[40]                 I consequently make the following order:

1.                   The non-compliance with the Uniform Rules of this Court in relation to timeframes, forms and service is condoned and dispensed with and the application is dealt with as one of urgency.

2.                   The decision taken on 22 June 2021 by the Council of the first respondent in terms of which the applicants were placed on special leave, is declared unlawful, null and void.

3.                   The decision taken on 22 June 2021 by the Council of the first respondent, placing the applicants on special leave, is set aside.

4.                   The respondents are directed to allow the applicants to resume their duties with immediate effect.

5.                   The first respondent is ordered to pay the costs of the application on a party and party scale.

C. VANZYL, J

On behalf of the applicants:            Adv MC Lauw

Instructed by:

Lovius Block Attorneys

BLOEMFONTEIN

On behalf of the 1^st respondent:      Adv R van der Merwe

Instructed by: Honey Attorneys

BLOEMFONTEIN

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