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REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: J 1782/15

In the matter between:

MOSES ZAKHELE DLAMINI                                                                      FIRST APPLICANT

NKGABE ANTONETTE MPHAGO                                                        SECOND APPLICANT

PULE VICEROY MAOKA                                                                           THIRD APPLICANT

and

INDEPENDENT POLICE INVESTIGATIVE

DIRECTORATE                                                                                               First respondent

KETSABAE KGAMANYANE                                                                     second respondent

Heard: 28 April 2016

Judgment:   29 April 2016

JUDGMENT

VAN NIEKERK J

[1] The applicants seek a declaratory order to the effect that their precautionary transfer beyond 30 October 2015 to the date of the hearing of this application is unlawful.

[2] The factual background to the application is not in dispute. These proceedings have their genesis in a letter addressed to each of the applicants on 19 August 2015 advising them of the first respondent’s intention to place them on precautionary transfer in accordance with clause 2 of chapter 7 of what is referred to as the SMS handbook. The notices called on the applicants to make representations as to why they should not be transferred. Each of the applicants made written representations. On 31 August 2015, each of them received a letter placing them on precautionary transfer with effect from 1 September 2015.

[3] On 3 September 2015, the applicants filed an urgent application in this court, seeking a stay of the transfer pending the outcome of the dispute referred to the relevant bargaining council. The matter was heard by Brassey AJ who made an order postponing the application to 15 September 2015 on certain terms, which included the following:

… 4.    During the period until 15 September 2015 the Respondent may instruct the Applicants to remain absent from work in which case their absence will not be regarded as a disciplinary offence.

5.         If the applicants are not so instructed that the fact that they did not observe the instruction to take transfer will not operate as a basis for disciplinary action.

[4] On 15 September 2015, after hearing argument, the court ruled that the matter was not urgent and accordingly struck it from the roll.

[5] On 16 September 2015, the second respondent, who is the acting executive director of the first respondent, addressed a letter to each of the applicants advising them that they were to ‘remain on precautionary transfer with full pay’ on the basis that certain travel and accommodation arrangements would be put in place. These arrangements would appear to relate to undertakings given at the proceedings on 15 September 2015, to the effect that the applicants would not be out of pocket consequent on their precautionary transfer.

[6] It is not disputed that the first and third applicants remain on precautionary transfer – the first applicant to KwaZulu Natal and the third applicant to Limpopo. The second applicant’s transfer was withdrawn on 1 December 2015. As a consequence, no relief was sought in respect of the second applicant.

[7] On behalf of the first and third applicants, counsel submitted that their transfers were unlawful in that the period of the transfer exceeded the 60-day limit on any precautionary suspension or transfer permitted in terms of the SMS handbook. The relevant provision of the handbook reads as follows:

(2) Precautionary suspension or transfer

(a)        The employer may suspend or transfer a member on full pay if –

·         the member is alleged to have committed a serious offence; and

·         the employer believes that the presence of a member in the workplace might jeopardise any investigation into the alleged misconduct, or endanger the well-being or safety of any person or state property.

(b)        A suspension or transfer of this kind is a precautionary measure that does not constitute a judgment, and must be on full pay.

(c)        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.

[8] The respondents do not dispute, as I have indicated, that the applicants were initially placed on precautionary transfer effective from 1 September 2015. What they contend is that the interim order granted on 3 September 2015, pending the determination of the application on 15 September 2015, operated as an interim interdict with the result that the applicants were not to report to their transferred posts and in the event that they did not. The first respondent was therefore barred from taking any disciplinary action against them. In other words, the interim order effectively suspended the operation of the period of transfer pending the final determination of the application on 15 September 2015. The respondents contend that they complied with the interim order by not insisting that the applicants report to their transferred posts pending the determination of the application. When the application was struck from the roll on 15 September 2015, the respondents submit that the period of operation of the precautionary transfer commenced, effective from that date, and that the 60-day period envisaged by the SMS handbook therefore expired only on 15 November 2015.

[9] In my view, on the papers before me, it is clear that the precautionary suspension was implemented by the first respondent with effect from 1 September 2015. This much is apparent not only from the letter of transfer, but subsequent correspondence in which the respondents confirm that the applicants remain on precautionary transfer. In any event, the terms of the order dated 3 September 2015 do not indicate that the order to interrupt the 60-day period. Be that as it may, whether the 60-day period commenced on 1 September 2015 or 15 September 2015 is frankly neither here nor there – the relief the applicants seek is specifically premised on the submission that any period of transfer or suspension beyond the 60-day period provided for in the SMS handbook is unlawful. The respondents do not dispute that even if the 60-day period was interrupted by the interim order, that period has long since lapsed. The only question to be decided then is whether any transfer that extends beyond the 60-day period is unlawful.

[10] This court has already considered and answered this question. In Lekabe v Minister: Dept of Justice and Constitutional Development (2009) 30 ILJ 2444 (LC), Molahlehi J, in dealing with a challenge to a suspension effected under the same provision, held that the applicant’s suspension fell away after the expiry of the 60 day period, unless the chairperson of the disciplinary hearing had extended that period. At paragraph [17] of the judgment, the court noted that the purpose of clause 2.7 (2) (c) was to address the ‘problem of protracted suspensions which demoralise and unfairly prejudice suspended employees, and specifically to curb the power of employers in the public service by using protracted suspension as a means of marginalising employees who may have fallen out of favour’. The court issued an order that the period of suspension beyond the 60-day period was invalid.

[11] There is no reason to decide the present matter any differently. The same principle applies to a precautionary transfer effected in terms of clause 2.7 (2) (c). In other words, an employer is afforded 60 days during which to conduct any necessary investigation during which the employee may be transferred as a precautionary measure assuming, of course, that the suspension or transfer is legitimate, at least to the extent that there is a proper and justifiable reason for the transfer, and that the affected employee is given an opportunity to state his or her case prior to any final decision being made. Once that period expires, any extension of any period of transfer can be effected only by the chairperson of a disciplinary enquiry. If by that date a chairperson has not been appointed, it follows that the period of transfer lapses and the employee must return to his or her permanent post. What the handbook is that the employer has no right unilaterally to extend any period of transfer or suspension; this is a power reserved for the chairperson of a disciplinary enquiry.

[12] For that reason, the present application stands to succeed. To the extent that counsel for the respondents has relied on the availability of an adequate alternative remedy in the hands of the applicants, he conceded during argument that the remedy sought in the bargaining council was one premised on fairness, in which the applicants seek redress for what they contend was an unfair labour practice committed by their employer. In these proceedings, what is at issue is the lawfulness of the applicants continued precautionary transfer. The referral of a dispute to the bargaining council is therefore not an adequate alternative remedy, it is no more than a separate substantive cause of action arising from the same set of facts. In regard to the respondents’ submission that after 15 September 2015, the applicants did not report to their new posts as instructed and that they therefore come before this court with unclean hands, that is not a case made out on the papers. Indeed, it would appear that this and other matters are dealt with in terms of charges of misconduct brought against the first and third applicants during November 2015 in circumstances where no decision has yet been made on those charges.

[13] Finally, in relation to costs, the applicants submitted that they ought to be awarded their costs but concede that the costs of only one counsel is warranted. I agree. This court has a broad discretion in terms of s 162 of the Labour Relations Act to make orders for costs on the basis of the requirements of the law and fairness. It seems to me that the interests of both are satisfied by an order that will ensure that the applicants will recover at least a portion of the costs that they have had to expend in order to enforce their rights. There is another reason why the respondents ought to pay the applicants’ costs. This court has previously warned against the abuse of an employer’s right to suspend employees or transfer them as a precautionary measure (see the Lekabe judgment referred to above). In the present instance, a disciplinary hearing was convened only on 13 November 2015. The charges brought against the first and third applicants have nothing to do with the allegations made against the first and third respondents at the time they were asked to make submissions regarding their proposed transfer. The respondents’ counsel acknowledged that the charges brought against the first and third respondents related to conduct during the period of transfer and not to the original allegations of leaking confidential information, but suggested that these allegations remained the subject of investigation. If that is so, and the prospect of disciplinary charges in respect of the leaking of information remains alive some eight months after they were first levelled, the respondents’ conduct entirely defeats the purpose of the expeditious handling of disciplinary matters that the SMS handbook clearly hoped to establish.  A failure to deal with disciplinary matters with due diligence and the disregard of employees’ rights represents a cost ultimately borne by the taxpayer. These continuation of these proceedings were necessitated the second respondent’s decision to flout the terms of a collective agreement regulating workplace discipline and promoting the efficient investigation and determination of allegations of misconduct. Had the applicants sought an order that held the second respondent solely and personally liable for costs, I would have seriously considered a submission to that effect.

I make the following order:

1.    It is declared that the continued precautionary transfer of the first and third applicants is unlawful.

2.    The first respondent is ordered to permit the first and third applicants to resume their duties in their respective permanent posts within one week of the date of this order.

3.    The first and second respondents, jointly and severally, are to pay the costs of this application, excluding the costs of the proceedings on 3 September 2015 when costs were reserved and 15 September 2015 when the court ordered that there should be no order as to costs.

   ANDRÉ VAN NIEKERK

                                                                          JUDGE OF THE LABOUR COURT

APPEARANCES

For the Applicant: Adv. Cassim SC, with him Adv. Masombuka, instructed by Adams and Adams

For the Respondent: Adv. K T Mokhatla, instructed by the State Attorney Pretoria

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