Mogothle v Premier of the Northwest Province and others

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MOGOTHLE v PREMIER OF THE NORTH WEST PROVINCE & ANOTHER334 [2009] 4 BLLR 331 (LC)ABCDemployee from the workplace, and unless the employee has been given an opportunity tomake representations, albeit not of the kind required by the “criminal justice” model ofworkplace disciplinary action.The Court held further that the evidence suggested that the MEC responsible for takingthe decision to suspend the applicant had merely followed the behest of the Legislature.This was unfair because, as the executing officer, the MEC should himself have tried tobalance the wishes of the Legislature with the applicant’s interests. Furthermore, therewas no indication on the papers that the applicant’s presence in the workplace wouldjeopardise the investigations. It was common cause that the applicant had not beenafforded a hearing of any kind before his suspension. The applicant’s suspension wasaccordingly unfair and, as such, breached the applicant’s contractual right to be treatedfairly. The Court accordingly had jurisdiction to entertain the application.As to the requirements of urgency, the Court noted that suspension may have seriouspersonal and social consequences for the employee, and that the right to work is linked tothe right to dignity. The matter was therefore urgent even though it had no pecuniaryconsequences for the applicant. The Court held further that, although the applicant mighthave a claim for damages, this was not an adequate alternative remedy in the circumstances.The decision requiring the applicant to take further leave of absence was set aside.JudgmentEFGHIVan Niekerk J:Introduction and background[1] The applicant, the deputy director-general of the Department of Agriculture,Conservation and Development in the North West Province, bringsthis application, as a matter of urgency, to set aside his suspension.[2] The applicant disavows reliance on the Labour Relations Act 66 of 1995(“the Act/LRA”). He founds this application on three grounds – breach ofcontract, breach of statute, and the Promotion of Administrative JusticeAct 3 of 2000 (“PAJA”). The applicant contends that his suspension isunlawful for one or more of the following reasons:• The decision to suspend him was taken by the respondents underdirection from the North West Legislature and not in the exercise ofa discretion entrusted to them.• Certain jurisdictional preconditions for the suspension were notsatisfied (these relate to an alleged breach of a regulatory measuregoverning the suspension of senior public sector employees). And,• He was not heard before the decision to suspend him was taken.[3] The respondents oppose the application on three grounds:• The application is not urgent.• This court has no jurisdiction to grant the order that the applicantseeks unless he follows the procedures contemplated by the LRA.And,J
MOGOTHLE v PREMIER OF THE NORTH WEST PROVINCE & ANOTHERVAN NIEKERK J [2009] 4 BLLR 331 (LC) 335• In any event, the applicant’s suspension (or “leave of absence” as itis described by the respondents) is valid and lawful.[4] In so far as the “breach of statute” component of the applicant’s claim isconcerned, that claim is founded primarily on what is referred to as the“SMS code”, a code of conduct governing senior management servicewithin the public service. It is not clear to me from the papers whether theSMS code is a statutory or other regulatory measure, or a collectiveagreement, or both. I am accordingly unable, in this respect, to discernany clear right that might stem from the code as statute.[5] In so far as the applicant’s claim is based on PAJA, the judgment of theConstitutional Court in Chirwa v Transnet Ltd & others 2008 (3) BCLR251 (CC) [also reported at [2008] 2 BLLR 97 (CC) – Ed] casts significantdoubt on whether public sector employees have the right to claim that theexercise of a contractual power by their employers, where that conduct isconcerned with labour and employment relations, constitutes administrativeaction for the purposes of PAJA. The majority judgments of SkweyiyaJ at paragraph [73] and Ngcobo J at paragraph [150] both hold that aremedy under section 33 of the Constitution of the Republic of South Africa,1996 is not available to public sector employees who complain ofunfair conduct by their employers. Both judgments expressly leave openthe question whether PAJA affords a remedy in these circumstances. Inhis minority judgment (at paragraph [194]), Langa CJ expressly states thathis conclusion that Chirwa’s dismissal was not administrative action underPAJA should not be construed to mean that dismissals of public sectoremployees would never constitute administrative action under PAJA. Afuller discussion on the interpretation of the Chirwa judgment follows below,but for present purposes and for reasons that will become apparent, Ido not regard it necessary to determine whether the applicant has a remedyunder PAJA, 1 and consider only that part of the applicant’s claim thatis founded in contract.[6] The facts giving rise to this dispute are largely common cause. Theirsubstance is set out below.[7] The applicant was employed by the department with effect from 1 April2006. He answers to the first respondent (“the Premier”) and also to the secondrespondent (“the MEC”), to the extent that the Premier has delegated herpowers to him. The applicant’s contract incorporates a number of statutoryand other regulatory provisions, including, it would seem, the SMS code. Thepart of the code relevant to these proceedings reads as follows:“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 at theworkplace might jeopardise any investigation into the alleged misconduct,or endanger the well being or safety of any person or stateproperty.ABCDEFGHI________________________1 The tenor of the majority judgments is that there is no such right.J
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