---

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J1632/16

In the matter between:

 

THE DEPARTMENT OF COMMUNITY SAFETY & TRANSPORT MANAGEMENT	First Applicant
and
BAILEY THABANG MAHLAKOLENG	First Respondent
COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION	Second Respondent
COMMISSIONER A BEVAN N.O.	Third Respondent

Heard:           01 July 2016

Delivered:     02 July 2016

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The Applicant approached the court on an urgent basis to seek an order in the following terms:

“2.        Reviewing and setting aside the arbitration award made by the Third Respondent under case number NWKD1554/16 on 17 July 2016;

3.         Alternatively to make an order that the First Respondent’s suspension remains intact and effective pending the finalisation of the Application for Rescission filed by the Applicant (Respondent in the CCMA proceedings) with the Second Respondent”

Background to the application:

[2] This application was launched and served on the First Respondent on 28 July 2016 and was only filed in Court on the morning of 01 August 2016 despite it being set down for a hearing on the same date. The First Respondent had promptly filed an answering affidavit, and the matter was heard without a replying affidavit being filed.

[3] Not much background to the dispute is proffered by the Applicant. However, from the answering affidavit, it is stated that the First Respondent is employed by the Applicant as its Head of Department. Following his representations on 3 March 2016 as to the reason he should not be suspended, the Office of the MEC placed him on precautionary suspension with full pay with effect from 14 March 2016 (the suspension letter is dated 08 March 2016). The suspension was effected in accordance with Chapter 7 of the SMS handbook. In the suspension notice, the First Respondent was advised that he would be informed of the outcome of the investigations within a period of one month, and that the disciplinary hearing would be convened within sixty (60) days from the date of the suspension.

[4] On 18 May 2016, some few days outside of the sixty days’ period, the First Respondent was called upon to attend a disciplinary enquiry. In the notice, the First Respondent was advised that the enquiry would be presided over by Adv. M. Hitge, and that Mr. H Wissing (the Applicant’s legal representative in casu) would act as evidence leader on the Applicant’s behalf.

[5] The First Respondent viewed his suspension as having expired and invalid, and his attorneys of record had sent correspondence to the Applicant in that regard, and followed that up with a tender to resume his duties on 23 May 2013. When he attended at the Applicant’s premises to tender his services, he was then issued with a letter of intention to suspend him authored by the MEC. The letter required of him to make representations as to the reason he should not be placed on precautionary suspension, which representations were to be considered on 25 May 2016.

[6] The First Respondent then referred a dispute to the CCMA under case number NWKD1544-16, which matter was set down as a con/arb for 19 May 2016. A certificate of outcome was issued and the matter was then set down for arbitration on 11 July 2016. The Applicant failed to attend those proceedings, and a default award was issued in favour of the First Respondent on 17 July 2016, in terms of which his suspension was found to be procedurally and substantively unfair. The suspension was also uplifted with immediate effect, and the Applicant was further ordered to pay to the First Respondent, compensation in the amount of six months’ compensation.

[7] A copy of the arbitration award was received by the First Respondent’s attorneys on 21 July 2016, and the Applicant was informed in writing on 26 July 2016 that the First Respondent would be reporting for duty on 27 July 2016. Upon reporting for duty, the First Respondent was then issued with a letter placing him on special leave. When the First Respondent protested against these turn of events, the letter placing him on special leave was then withdrawn.

The Applicant’s case:

[8] The Applicant in approaching the court on an urgent basis contends the following;

8.1       The arbitration award issued by the Third Respondent (Commissioner) is bad in law as the CCMA did not have jurisdiction to deal with the dispute. In this regard, the Commissioner exceeded her powers in assuming jurisdiction over a matter that should have resorted under the General Public Sectorial Bargaining Council.

8.2       The provisions of section 147 (2) and (3) did not bestow the Commissioner with the power to exercise a discretion to assume jurisdiction, and in accordance with a proper reading of those provisions, only the ‘Commission’ could exercise a discretion as to whether a matter ought to be heard by the CCMA or not;

8.3       The Commissioner’s assumption of jurisdiction was unlawful, and the Applicant had a clear right not to be subjected to legal implications stemming from an award that was bad in law or legally unfounded.

8.4       The well-grounded apprehension of irreparable harm or injury was founded in the fact that the very purpose of the First Respondent’s suspension was being negated by the current arbitration award, as a result of which the integrity of the pending investigations and disciplinary enquiry may well be undermined.

8.5       The Applicant had no alternative remedy in that the Applicant’s legal representatives have unsuccessfully attempted to obtain a date from the CCMA to argue the application for rescission on an urgent basis.

Evaluation:

[9] At the commencement of these proceedings I had commented that the application before the court was indeed extraordinary especially in the light of the relief sought. The relief that the Applicant seeks is essentially in two parts. The first is in the form of a final order to the extent that the Applicant seeks to review and set aside the arbitration award as issued by the Commissioner on 17 July 2016. This is extraordinary in that ordinarily, matters of this nature come before the court in the normal course following upon an application in terms of the provisions of sections 145 or 158 of the Labour Relations Act.

[10] The second part is in the form of interim order (status quo, as contended on behalf of the Applicant), as the Applicant seeks to have the First Respondent’s suspension to be in effect pending the determination of the rescission application before the CCMA.

[11] In respect of the first part of the relief sought, it follows that the applicant must satisfy the essential requirements being: (a) a clear right; (b) an injury actually committed or reasonably apprehended; (c) the absence of any other satisfactory; and (d), the balance of convenience in its favour.

[12] The First Respondent’s contention was that the Applicant had no clear or prima facie right as the suspension was invalid as it was not in accordance with the SMS Handbook. Clause 2.7 (2) (c) of the Handbook provides that;

“If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement”

[13] It was also pointed out on behalf of the First Respondent that the above provisions should be read together with “The Public Service Guidelines for Disciplinary Sanctions and Precautionary Suspension” directive issued by the Department of Public Service and Administration dated 04 December 2015, which inter alia provide that;

“The employee must return to work should the hearing not be concluded within 60 calendar days; however this does not prohibit/preclude the employer from continuing with the disciplinary process nor does it render the employee immune from the allegations preferred against him/her”[1]

[14] The Applicant’s contention was that it was not for this court to make a determination as to the validity of the suspension as this was not an issue before it. Nevertheless, the issue of suspension forms the subject matter of the Commissioner’s findings, and it is the very same issue that had prompted the Applicant to approach this court on an urgent basis. It would thus be remiss of the court to simply determine the application in a vacuum. The above guidelines under the DPSA come at a time when serious concerns have been raised in respect of public servants being placed on any form of suspension for prolonged periods without regard to either the rights of an employee to have an expedited disciplinary process or the fact that it is the tax payer that has to pay the employee a salary whilst he/she is not rendering any service to the public. The guidelines were meant to ensure inter alia, that any form of investigation into allegations of misconduct are conducted and finalised within a reasonable period of time of sixty days; that enquiries should be scheduled as speedily as possible, and for chairpersons appointed to decide on any further postponements where necessary. These guidelines are meant to ensure that the general public gets value for money from public servants.

[15] In this case, the disciplinary process was scheduled outside of sixty days. There is no indication that at the enquiry as held on 18 May 2016, the chairperson had considered any request for a postponement or even decided on a further postponement. Instead what the Applicant sought to do in an attempt to circumvent the provisions of the Handbook was to issue a fresh letter of intention to suspend the First Respondent. There is nothing in the founding affidavit that suggests that the basis of the second notice of suspension was in any manner different from that of the first suspension.

[16] The Applicant’s contentions that it has a clear right not to be subjected to legal implications stemming from an award that is bad in law or legally unfounded are equally unsound in law in the light of the conclusions to be reached in respect of alternative suitable remedies available to it. In my view, it is irrelevant for the purposes of this application that the Commissioner’s findings on jurisdiction might be flawed. To this end, and to the extent that prima facie, the suspension is invalid in the light of the peremptory provisions of the SMS Handbook and the DPSA Guidelines, there can be no basis for any conclusion to be reached that the Applicant has demonstrated that it has a clear or prima facie right to the relief that it seeks. These conclusions should therefore dispose of this application.

[17] I will however for the sake of convenience and completeness deal with other aspects of final relief, more particularly in order to demonstrate the extraordinary nature of this application. In regards to the issue of irreparable harm, a concern needs to be raised as far as this issue was pleaded by the Applicant. In the founding affidavit, it is merely alleged that ‘the very purpose of the First Respondent’s suspension is being negated by the current arbitration award…’. It is however not apparent from the papers as to what the nature of the allegations against the First Respondent are, and what purpose the suspension was meant to serve.

[18] It was argued on behalf of the First Respondent that the Applicant cannot suffer any harm if the First Respondent returned to work as investigations have already been concluded and since the latter has been served with a ‘charge sheet’. I fail to appreciate the reason that the Applicant contends that it would suffer any irreparable harm when on its own papers, it had further contended that “It is common cause between the parties that the Respondent (First) had been suspended and that an internal disciplinary enquiry has commenced against him, which is not yet finalized’[2].

[19] The Applicant’s contentions that the well-grounded apprehension of irreparable harm or injury was founded in the fact that the very purpose of the First Respondent’s suspension was being negated by the current arbitration award, as a result of which the integrity of the pending investigations and disciplinary enquiry may well be undermined are therefore disingenuous if not a mere red herring. From the averments made by the First Respondent, read together the Applicant’s own averments, it is apparent that the investigations into any allegations of misconduct (which remain unclear from the papers) have been completed. Furthermore, it is also apparent that the disciplinary process has commenced and is yet to be finalised.

[20] It has been accepted that a precautionary suspension implemented when the disciplinary hearing itself was already well underway is impermissible[3].  To the extent that this is the case, there is no indication that any allegations of misconduct against the First Respondent are still under investigation. Furthermore, it is not known why the disciplinary proceedings have not been completed or postponed. In the light of these factors, it should be concluded that the Applicant has not demonstrated that it would suffer any irreparable harm should the First Respondent be ordered to return to duty.

[21] In regards to alternative remedies, it is accepted as already indicated that applications to review or set aside arbitration awards in terms of section 145 ordinarily come before this court in the normal course. To the extent that the Applicant is aggrieved by the Commissioner’s default award, the provisions of section 144 are available to it. In fact, it is common cause that an application for rescission has since been filed.

[22] The Applicant’s contention however in approaching this court was that it was unsuccessful in obtaining an urgent date from the CCMA to deal with the rescission application. It is nevertheless not known what else the Applicant had done to ensure that the application is heard on an urgent basis by the CCMA to the extent that Rule 31 (8) of the CCMA Rules makes provisions for urgent applications.

[23] With this urgent application to review and set aside the arbitration award, which if granted would put an end to any review proceedings emanating from the award issued by the Commissioner, the Applicant essentially seeks to jump the proverbial litigation queue. This in my view constitutes an abuse of this court’s proceedings. There is nothing exceptional about the facts of this case that entitles the Applicant to preferential treatment. Ordinary employees with less financial means are faced with suspensions daily, and when their cases are thrown out at the CCMA or Bargaining Councils, they file their review applications and wait for their turn in the litigation queue. Employers, in the face of adverse awards or rulings are equally obliged to wait for their turn. Contrived arguments to the effect that the CCMA has failed to deal with applications on an urgent basis do not entitle parties to direct access to this court.

[24] The above points are even more pertinent within the context of the second leg of the relief sought. The Applicant seeks to have the suspension remain in force pending the determination of the rescission application before the CCMA. It has already been indicated that the Applicant has not demonstrated the reason it appears so desperate to prevent the First Respondent from reporting for duty. As already indicated, the rescission application is pending before the CCMA, and there is no indication as to what it is that the Applicant has done to have the matter heard on an expedited basis. To the extent that the alternative remedy available has thus far been utilised, I fail to appreciate the logic of approaching this court on an urgent basis.

[25] The other issue for consideration in this case is that of urgency. It is trite that in line with the provisions of Rule 8, an applicant must adequately set out his founding affidavit the reasons for urgency. It is thus not adequate for the applicants to simply aver that a matter is urgent, as it is required of them to explain in some detail why the matter is urgent, and why urgent relief is necessary. Thus the applicants are required to set out the circumstances which render the matter urgent and the reasons why substantial redress cannot be obtained at a hearing in due cause.

[26] In determining urgency, a court will be guided by considerations of whether the reasons that make the matter urgent have been set out succinctly in the papers and secondly, whether the applicant seeking relief will not obtain a substantial relief at a later stage. Failure to give cogent reasons as to why a matter should be accorded urgency, and further where it is apparent from the pleadings and the facts that the urgency is self-created, this will invariably result in the application being struck off the roll for want of urgency[4].

[27] In this case, the Applicant did not indicate in its founding affidavit as to the reason the application should be accorded urgency. All that was done was to make reference to the rescission application before the CCMA in terms of which under ‘Urgency’, a contention is made that the First Respondent had reported for duty with effect from 27 July 2016 in circumstances where his disciplinary hearing is not finalised.

[28] The arbitration award of the Commissioner was issued on 17 July 2016. The Applicant received a copy of the award on 21 July 2016 and launched this application on 28 July 2016. No attempt was made by the Applicant to explain the delay between 21 and 28 July 2016. Furthermore, it has already been indicated that in terms of the provisions of the SMS Handbook, once the sixty-day period has expired, the employer is obliged to hold a disciplinary enquiry. In accordance with the DPSA Guidelines, the employee is required to report for duty should the hearing not be concluded within sixty days. This is what the First Respondent has done. It therefore follows that urgency in this case cannot be created by the mere return to work by the First Respondent. I am therefore satisfied that the urgency alleged by the Applicant is clearly self-created. Ordinarily, and on this ground alone, the matter ought to be struck off the roll. However, in the light of other conclusions reached, no purpose will be served enabling the Applicant to place the matter on the ordinary roll in the future.

Costs:

[29] The provisions of section 162 enjoins the court to make orders for costs in accordance with the requirements of law and fairness. In this case, a cost order de bonis propriis was sought in the light of it being contended that the application was ill-conceived, bad in law, and the fact that the relief sought was incompetent. It was further argued on behalf of the First Respondent that this application was an abuse of the court process.

[30] Recently in Wenum v Maquassi Hills Local Municipality[5], Prinsloo J had occasion to consider circumstances under which costs de bonis propriis should be made by reference to Indwe Risk Services (Pty) Ltd v Van Zyl[6]  where the Court held that:

‘I am also mindful of the fact that an order for costs de bonis propriis is only awarded in exceptional cases and usually where the court is of the view that the representative of a litigant has acted in a manner which constitutes a material departure from the responsibilities of his office. Such an order shall not be made where the legal representative has acted bona fide or where the representative merely made an error of judgment. However, where the court is of the view that there is a want of bona fides or where the representative had acted negligently or even unreasonably, the court will consider awarding costs against the representative. Because the representative acted in a manner which constitutes a departure from his office, the court will grant the order against the representative to indemnify the party against an account for costs from his own representative. (See in general Erasmus Superior Court Practice at E12-27.) ‘ 

[31] I am in agreement with the contentions made on behalf of the First Respondent that this application in the light of the alternative remedies available to the Applicant was clearly ill-conceived, misguided, bad in law and constituted an abuse of the court process. Mr Wissing on behalf of the Applicant being intrinsically involved in this matter as the evidence leader in respect of the disciplinary hearing ought to have known better that this application was a clear non-starter. This is not a case where it can be said that the Applicant’s attorneys acted bona fide or where it can be said that there was an error of judgment. This application was brought before the court for reasons that are not clear.

[32] The Applicant together with its legal representative ought to have been aware of the provisions of the SMS Handbook read together with the DPSA Guidelines. Common sense would have dictated that in the light of the default award against it, the Applicant ought to have let the process in terms of section 144 of the LRA take its course, rather than approaching this court with a contrived application meant to frustrate the First Respondent from rendering his services. I have no hesitation in concluding that there was clear incompetence on the part of the Applicant in dealing with its disciplinary processes, and the fact that the Applicant sought to place the First Respondent on ‘special leave’ clearly indicates that it had run out of options in keeping the First Respondent out of the workplace. It is not only unfair but unconscionable for the general public to be burdened with costs orders that should have been foreseen and avoided in the first place. The lessons to be learnt with such cases, is that legal representatives should properly and consciously reflect on the merits of their client’s cases prior to embarking on a litigation path, especially where such actions impact on the tax payers’ pocket, which it might be added are not a bottomless pit. To this end, having taken account of the merits of this case, and further having had regard to considerations of law and fairness, the following order is deemed appropriate; 

Order:

i.        The Applicants’ application is dismissed.

ii.        The First Respondent’s costs are to be paid by Henk Wissing Attorneys de bonis propriis.

__________________

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant:                        H Wissing of Henk Wissing Attorneys

 

On behalf of the Respondent:                   Adv. A Mosam

Instructed by:                                            Warrick Heppel Attorneys

---

---