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IN THE LABOUR COURT OF SOUTH AFRICA

(HELD IN DURBAN)

 

Case no: D 213/2024

Not Reportable

 

In the matter between:

 

SAZI BRIGHT SHANGE	Applicant
and
NEWCASTLE LOCAL MUNICIPALITY	First Respondent
ZAMOKWAKHE WESLEY MCINEKA	Second Respondent

Heard:  29 August 2024

Judgment delivered (electronically):   26 November 2024

 

JUDGMENT

 

WHITCHER J

 

Introduction

 

[1]  The applicant seeks an order in the following terms:

(a)  Declaring the first and second respondents are in contempt of an arbitration award issued by Commissioner Yusuf Nagdee under the auspices of SALGBC… on 20 October 2023 and certified….

(b)  Impose a fine, which is deemed appropriate by the Court on the first and second respondent, jointly and severally.

(c)  Impose a period of imprisonment such as is deemed appropriate by the Court on the second respondent suspended on conditions deemed appropriate by the Court.

(d)  Directing the first and second respondent to comply with the certified arbitration award.

 

Factual matrix

 

[2]  The applicant is employed by the first respondent as Manager: Sewer Reticulation.

 

[3]  The second respondent is the Municipal Manager of the first respondent. It is his duty to ensure that awards and court orders are complied with. He is also the deponent to the opposing affidavit.

 

[4]  On 9 September 2022, the applicant was informed that a preliminary investigation (report) by COGTA had found that he had approved the payment of R1 590 930.24 to a service provider for good (services) not delivered.[1]  

 

[5]  The Municipal Manager was not satisfied with the applicant’s written response to the allegation and invited him to show cause why he should not be placed on precautionary suspended and vacate the work premises pending a further investigation of the allegation.

 

[6]  On 20 September 2022, the Municipal Manager implemented the suspension and directed the applicant to vacate the work premises.

 

[7]  On 15 March 2023, the applicant was served with notice to attend a disciplinary hearing on 20 March 2023.

 

[8]  On 20 March 2023, the applicant moved for his suspension to be lifted. The presiding officer of the disciplinary enquiry concluded that he had the power to adjudicate the application, found that clause 16.4 of the SALGBC Disciplinary Procedure Collective Agreement (the DPCA) did not permit a suspension to exceed 6 months’[2] and ruled that:

 

Mr Shange’s suspension be not extended any further than 20 March 2023.

 

[9]  Judging from a remark he made in the opposing affidavit about the ruling, the Municipal Manager decided to ignore this ruling, because in his view the chairperson had acted “ultra vires”, and instead extended the applicant’s suspension. He commenced this process two days after the ruling.

 

[10]  On 20 June 2023, pursuant to a dispute lodged by the applicant, the SALGBC issued a Compliance Order directing the respondents to comply with the above-mentioned ruling and lift the suspension. This order was also ignored. No reason is offered in the opposing affidavit.  

 

[11]  On 20 October 2023, the SALGBC issued an arbitration award which, inter alia, reads:

The Compliance Order is confirmed.

The Respondent is ordered to comply with the Compliance Order within 14 days of the date hereof.

 

[12]  By then the applicant had in effect being on precautionary suspension for 10 months.

 

[13]  Following the award, the applicant reported for duty on 2 November 2023 and was allowed to return to work.[3]

 

[14]  In the meantime, the applicant had applied for his disciplinary enquiry to be conducted in terms of s188A of the Labour Relations Act, 1995. The application was granted on 14 August 2023, and a hearing was scheduled for 27 February 2024.

 

[15]  On 24 January 2024, the Municipal Manager addressed to the applicant a notice of intention to place him on precautionary suspension and invited him to show cause why it should not be implemented.

 

[16]  The relevant portion of notice reads as follows:

Pursuant to the [above] arbitration award…your suspension was uplifted in compliance with the award despite the fact that we disagreed with the award.

Your disciplinary hearing has been set down for hearing on 27 February 2024 and our team needs to start its preparations for the hearing, however, most of the witnesses are not comfortable to testify and to attend meetings with our legal representatives due to your continued presence at work as they fear victimisation and harassment. Some witnesses have even indicated that they fear for their lives, therefore, it is on those bases that you are directed in terms of clause 16.3 of the [DPCA] to immediately vacate the municipal premises.

Please note that this is a new and a separate notice of suspension as we had previously complied with the award. However, having considered the prevailing circumstances, as the Municipal Manager, I am compelled to exercise my powers in terms of clause 16 of the [DPCA] and to protect the integrity of the disciplinary hearing and the witnesses.

 

[17]  The applicant responded that the suspension would amount to contempt of the arbitration award.

 

[18]  In reply, the Municipal Manager contended that the respondents had complied with the award on 2 November 2023 when the applicant returned to work and that the intended suspension was a new and separate one and necessitated by the circumstances described in the earlier notice.

 

[19]  In consequence, on 12 February 2024, the applicant was ‘placed’ on precautionary suspension and directed to vacate the work premises.

 

[20]  In turn, the applicant brought these contempt proceedings.

 

The defence

 

[21]  The Municipal Manager submitted to this court he is not in contempt of the arbitration award.

 

[22]  He reasoned that the suspension implemented on 20 September 2022 was the subject of the arbitration award and that that suspension was lifted on 2 November 2023 when the applicant was permitted to return to work; the suspension implemented on 12 February 2024 was a ‘‘new’ suspension [necessitated by “new facts” explained in the notice to the applicant] and it is not the subject of the arbitration award.  

 

[23]  In any event, he contends, he had acted under a genuine belief that the suspension implemented on 12 February 2024 was not in contravention of the arbitration award. In this regard, he had sought legal counsel about the situation that confronted him in January 2024 and was advised that the respondents had complied with the award. Moreover, the suspension implemented on 12 February 2024 was not prejudicial to the applicant: it also provided him “space” to prepare for the disciplinary enquiry and it was with pay.

 

The issues for determination

 

[24]  The issues are: What were the terms of the order (the arbitration award) the Municipal Manager was required to comply with? Did he comply therewith? If not, has he provided evidence sufficient to create reasonable doubt that his non-compliance was wilful and mala fide?  

 

[25]  The arbitration award related to the ruling made on 20 March 2023 which in turn related to the precautionary suspension imposed on 20 September 2022 and still extant on 20 March 2023. The ruling directed that that suspension must not be extended beyond 20 March 2023 - essentially that the suspension must be lifted with immediate effect.

 

[26]  Clearly, the Municipal Manager did not comply with the ruling on 20 March 2023 or soon thereafter and in fact did the opposite when he commenced an extension of the suspension on 22 March 2023. However, these contempt proceedings relate to the award issued on 20 October 2023 and the evidence established that the award was complied with on 2 November 2023 when the applicant returned to work. On the facts, the suspension that was the subject matter of the ruling made on 20 March 2023 and 20 October 2023 was lifted on 2 November 2023.

 

[27]  As to the suspension imposed on 12 February 2024, while its legal merits are dubious in terms of clause 16 of the DPCA, on the facts it was a new and separate suspension, distinct from the one implemented on 20 September 2022 and which formed the subject matter of the arbitration award.

 

[28]  The applicant has therefore failed to prove the Municipal Manager is guilty of contempt of court.

 

[29]  Given the history of this matter, this application was not unreasonably brought and accordingly a cost order is not appropriate.

 

Order

1.  The application is dismissed.

 

Benita Whitcher

Judge of the Labour Court of South Africa

 

APPEARANCES:

For the Applicant: Mr Mpanza, a union official from SAMWU

For the Respondents: S Tshangana, instructed by TJ Mphela Attorneys Inc

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