Mogothle v Premier of the Northwest Province and others

More documents

Recommendations

Info

MOGOTHLE v PREMIER OF THE NORTH WEST PROVINCE & ANOTHER346 [2009] 4 BLLR 331 (LC) VAN NIEKERK JABCDEFGHIJthe investigations that were proposed, nor is there any suggestion that thewell-being or safety of any person or property would be endangered. Therespondents have failed in their affidavits to produce any substantive evidenceto satisfy either of these requirements.[43] In regard to procedural fairness, I noted above that it is common causethat they applicant was not afforded a hearing. Although the SMS code issilent on the requirement of a hearing, for the reasons recorded above, theaudi alteram partem principle required that prior to his indefinite suspension,the applicant be given an opportunity to state a case in response toany proposal to that effect made by the respondents. To the extent that therespondents make the argument that the applicant had an opportunity torequest a hearing at which submissions could be made but chose not to doso, this submission overlooks the point that it is not for the employee torequest a hearing, but for the employer to offer one.[44] To summarise: There is no clear reason articulated by the respondents asto why the applicant’s suspension was necessary in order to protect the integrityof the proposed enquiry, nor have the respondents established anybasis on which it might be suggested that the applicant’s continued presenceat work would endanger the safety or well-being of any person. Further,the respondents failed to afford the applicant any substantial right toa fair hearing prior to his suspension.[45] For these reasons, I am satisfied that the applicant has established a clearright to the relief that he seeks.Other requirements relevant to final relief[46] In relation to urgency, the applicant avers that his employment gives himthe right to work in order to satisfy the incorporeal and emotional needthat the right to work confers, and that his prospects of earning pre-setperformance targets are compromised unless he works the full year. Therespondents submit that the applicant’s suspension will not prejudice hisrights to any bonus to which he may become entitled, and that in anyevent, in terms of the SMS code, any suspension is limited to 60 days, atwhich point a disciplinary hearing must be convened.[47] In regard to the prejudice suffered by the applicant, Muller’s case, supra,although it dealt with the additional dimension of a deprivation of remunerationduring a period of suspension, emphasises the personal and socialconsequences that suspension brings. The link between the freedomto engage in productive work and the right to dignity was recently emphasisedby Nugent JA in Minister of Home Affairs & others v Watchenuka& another 2004 (4) SA 326 (SCA) [also reported at [2004] 1 All SA 21(SCA) – Ed], where he stated:“The freedom to engage in productive work – even where that is not requiredin order to survive – is indeed an important component of human dignity. . . for mankind is pre-eminently a social species with an instinct formeaningful association. Self-esteem and the sense of self-worth – the fulfilmentof what it is to be human – is most often bound up with being acceptedas socially useful.” (At paragraph [27].)
MOGOTHLE v PREMIER OF THE NORTH WEST PROVINCE & ANOTHERVAN NIEKERK J [2009] 4 BLLR 331 (LC) 347In so far as the 60-day limitation is concerned, as I already noted, therespondents have cast the applicant’s suspension as a period of “indefiniteleave”, suggesting that it is intended to be indefinite. Taken cumulatively,the non-pecuniary consequences for the applicant of his suspension andits indefinite nature satisfy the requirements of urgency in this instance.[48] Finally, I am also satisfied that the applicant has no other alternativeremedy. The respondents submit that the applicant may seek adequate redressin terms of the unfair labour practice provisions of the LRA. Thatmay be so, but the applicant has elected (as he is entitled to do for the reasonsreflected above) to pursue a contractual remedy. The fact that theapplicant may have some other cause of action that he elects not to invokeis of no consequence. The respondents’ claim, in these circumstances, thatan action for damages will cure any loss that the applicant has suffered,takes no account of the fact that a claim for damages is costly, time consumingand complex and that, in any event, it cannot account for the detrimentalconsequences of indefinite suspension, especially those of amore incorporeal nature referred to by Nugent JA in the Watchenukajudgment, supra.[49] The applicant is entitled to the relief that he seeks. I accordingly make thefollowing order:1. The decision of the second respondent requiring the applicant to takeleave of absence is set aside.2. The respondents, jointly and severally, are to pay the costs of theseproceedingsFor the applicant:Adv MSM Brassey SC instructed by SM Mookeletsi AttorneysFor the respondents:Adv PJ Pretorius SC and Adv BL Makola instructed by Kgomo, Mokhetle &Tlou AttorneysABCDEFGThe following cases were referred to in the above judgment:South AfricaAvril Elizabeth Home for the Mentally Handicapped v CCMA & others[2006] 9 BLLR 833 ((2006) 27 ILJ 1644) (LC) ......................................... 343Boxer Superstores Mthatha & another v Mbenya[2007] 8 BLLR 693 (SCA) ......................................................................... 338Chirwa v Transnet Ltd & others [2008] 2 BLLR 97;2008 (3) BCLR 251 (CC) ........................................................................... 334Fedlife Assurance Ltd v Wolfaardt [2001] 12 BLLR 1301(2002 (1) SA 49) (SCA) ............................................................................. 340HOSPERSA & another v MEC for Health, Gauteng ProvincialGovernment [2008] 9 BLLR 861 (LC) ....................................................... 343Jacobs & andere v Minister van Justisie & andere (unreported case) ............ 342HIJ
Page 1 and 2: MOGOTHLE v PREMIER OF THE NORTH WES
Page 15: MOGOTHLE v PREMIER OF THE NORTH WES

Mogothle v Premier of the Northwest Province and others

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?