In the matter between:

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1 REPUBLIC OF SOUTH AFRICA THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT Not reportable Case No: JR 2452/10 In the matter between: DUMILE EZEKIA NANA Applicant and MANTSOPA LOCAL MUNICIPALITY SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL CHARLTON REX, N.O. First Respondent Second Respondent Third Respondent Heard: 30 April 2013 Delivered: 12 September 2014 Summary: Review Condonation JUDGMENT

2 Page 2 LAGRANGE, J Introduction [1] This is an unopposed application to review and set aside an arbitration award. The review application was filed four weeks out of time and accordingly it is necessary to determine if the late filing thereof should be condoned. Condonation [2] The applicant received the award on 16 September 2010 and consequently ought to have filed his review application by 28 October The applicant s explanation for the lateness was that he had to secure finance from friends and family members to instruct an attorney to assist him with the application as he was experiencing financial hardship owing to been unemployed since October 2009 once an appointment had been secured with his attorney it took an additional two weeks to obtain an appointment with Council. [3] The delay is not insignificant given that the period of delay is approximately two thirds longer than the period within which it ought to have been filed, and the details of exactly when the finance was obtained and the attorney instructed are somewhat imprecise. Nevertheless, as the matter is unopposed there is no evidence that the first respondent has been unduly prejudiced by that delay and in view of my view of the merits which are dealt with below, condonation ought to be granted in my view. Merits of the review application Material Evidence [4] The applicant was employed as the Integrated Development Officer at the respondent municipality. The applicant was dismissed after being found guilty of four charges relating to statements he made about the municipal manager, Ms C Rampai in a TV interview and which appeared in an article in the Volksblad, a newspaper. The first charge was that the allegations of misconduct, corruption and generally negative misrepresentations he made about the municipal manager were intent on undermining her. The second

3 Page 3 charge was that the allegations in the SABC interview and in the Volksblad article, were untrue and baseless and intent on putting her in a bad light, which thereby compromised the credibility and integrity of the municipality itself. The third charge which is difficult to distinguish from the second was that he was charged with gross misconduct and/or gross negligence in bringing the municipality into disrepute by making those allegations about the municipal manager. Lastly he was charged with gross insubordination and insolence towards the municipal manager in making rude, abusive, insolent and provocative remarks about her. [5] At the time of giving the interview, Ms Rampai had been dismissed. She had been charged with eight counts of misconduct all relating to her alleged failure to obey reasonable and lawful instructions or alternatively failing to perform her job responsibilities diligently, carefully and to the best of her ability. The employer found her guilty of seven of the eight charges against her and she was dismissed. She appealed against the decision but the appeal was dismissed in a comprehensive ruling by the chairperson of the appeal body. [6] At the arbitration hearing, the impugned municipal manager, who had previously been dismissed after an internal appeal failed in October 2008 but was subsequently reinstated, gave evidence for the respondent. The applicant testified on his own behalf. He also called the former mayor of the municipality, who was the mayor at the time of the incident, to testify. [7] The applicant had alleged that his dismissal was substantively and procedurally unfair. The arbitrator found that there was no evidence before him to conclude that there was any procedural unfairness. [8] A television interview with Mr Besani, the Free State Provincial Secretary of the ANC was also viewed in the hearing. Likewise the television interview with the applicant was also viewed. [9] In the course of his interview the applicant was recorded as saying of Ms Rampai, who had been suspended at the time,that she was suspended because she lacked capacity and, when asked by the interviewer for the reason, he referred to about six charges against her.

4 Page 4 [10] Ms Rampai s view was that he made those statements under political influence and that they were insubordinate even though she was suspended at the time. Moreover, they sent a negative message to the community. [11] Evidence was adduced that a resolution of the municipality in late August 2008 had identified the post of Practitioner: IGR & Communications for the 2009/2010 financial year. A recorded comment on the post stated: The post should be prioritised during the 2009/2010 financial year given the need to profile the image of our municipality and in the meantime, the manager: IDP & Organisational Performance shall perform those functions under the supervision of the Municipal Manager and the Mayor. Further, an organogram apparently attached to the same document 1 indicated that the same person had responsibilities for media liaison and monitoring. However, Ms Rampai disputed that the document was anything more than a resolution of strategic plans not a resolution to appoint persons to the positions indicated. [12] The applicant s defence to the charges was that he had made the statements, he was doing so on the instruction of the Mayor and the acting Muncipal Manager, Mr Tladi. He claimed that he was instructed to inform the public about the statement of the council regarding the position of the Municipal Manager and he was given the documents including the outcome of the disciplinary hearing and the outcome of the appeal tribunal which confirmed her dismissal. Four of the seven charges of which she was found guilty related to incapacity. When he attended the next management meeting there was suggestion he had misrepresented matters. He also believed that what he was saying was true because of the documents he had been given. Nonetheless, he also said he had made the statement that Ms Rampai lacked capacity because that was the Council s view. [13] However, under cross-examination when it was pointed out to him that the municipality had reinstated Ms Rampai once the persons who had pursued the 1 The organogram was not included as part of the record filed by the applicant.

5 Page 5 charges against her had been removed from the council, he conceded it might have been politically motivated. He further conceded that politics were there in the municipality but he confined himself to what was in the documents which is what he used as the basis for his statement, not as a result of a direct instruction as such. [14] He further claimed that he was given the responsibility for media liaison and inter-governmental relations in May 2008 when the council approved the Muncipal Integrated Development Plan. Essentially the council adopted the plan on the recommendation of the acting Municipal Manager. He was adamant that he had nothing to do with the Volksblad article, which emanated from a statement made by the Chief Whip of the ANC in the municipality, not from him. He was tackled on the issue of how he could not have been aware of the article but he felt it emanated from the ANC and did not reflect badly on the municipality as such. When the former Mayor testified he confirmed that the article had been drawn up by himself and other counsellors and given to the Chief Whip to sign. The applicant was not involved in drawing it up at all and it was a political issue involving council members and not the council administration. [15] He was somewhat reluctant to be drawn into acknowledging that the statements he made about Ms Rampai at the time of the SABC interview were wrong in view of her subsequent reinstatement by the municipality. He would only go so far as to say that in the light of her reinstatement, what he had said was no longer relevant. When confronted with the fact that Ms Rampai had said his statements impaired her dignity he retorted that he was disputing the fairness of his dismissal because at the time his superiors were satisfied with the statements. In his view, it was for the council to withdraw the statements as he made it them on the council s behalf. He had made the statement because the acting Municipal Manager and the Mayor had been away together on council business and he was given the two documents and asked to do the SABC interview. [16] It must be said that the arbitrator assiduously pursued the issue of how the instruction had been conveyed to him and indicated that he was sceptical that

6 Page 6 there was no written instruction to the applicant to make the statement if he had indeed been instructed to do the interview. The arbitrator s reasoning [17] In his award, the arbitrator summarised the evidence of Ms Rampai and the applicant. It is true that the arbitrator did not set out the evidence of the former Mayor, Mr Mathee, in any detail but it is clear that he accepted his testimony that the applicant played no role in the publication of the article in the Volksblad. [18] The arbitrator accepted that the applicant was making statements in his capacity as the authorised spokesperson of the Council and municipality but decided that the real issue was whether he could rely on that as a defence. The arbitrator felt that if he had been merely following instructions he would have called for an insisted on protection from the Council. He held that the applicant failed to lead any evidence in writing that he was instructed to say what he did. In any event the question to be considered is whether an unlawful action could be protected simply because it had been authorised. In his view, the applicant could have refused to obey the instruction because it was unreasonable and unlawful. [19] In this regard, the applicant ought to have known that the statements would have aggrieved Ms Rampai and he should not have allowed himself to be used as part of the campaign against her, but he took responsibility for what he said. [20] The arbitrator found that the mere fact that Ms Rampai was reinstated was proof that the allegations against her were nothing more than attempts to destroy her political career. The applicant had demonstrated an intolerable degree of disrespect towards her and his comments in the TV interviewed degraded her to such an extent that his dismissal was justified on that ground alone.

7 Page 7 Grounds of review [21] The applicant stated his grounds of review mainly in broad terms relating to the arbitrator s failure to consider evidence and the reasonableness of the award. The applicant did not initially supplement his grounds of review when he filed his supplementary affidavit, but filed a further supplementary affidavit. However, I have relied on the grounds of review as filed by the time he complied with Rule 7A(8). The more particular complaints of the applicant in his founding affidavit were that: 21.1 The arbitrator failed to consider that he was duly authorised to make media statements on behalf of the Council and this was confirmed by the erstwhile mayor of the municipality The arbitrator also failed to consider the evidence that at the time the interview was given, Ms Rampai had been found guilty of seven charges of which four related to her failure to perform her duties and job responsibilities diligently, carefully and to the best of her ability and she had been dismissed At the time the interview was conducted those statements reflected the official position of the Council and consequently no retraction was made Although the arbitrator accepted that the applicant was the spokesperson of the Council, he failed to consider that what the applicant had stated in the interview at the time was factually correct The arbitrator s finding that there was something unlawful about the statement was an absurd conclusion The arbitrator s finding that because Ms Rampai was reinstated that fact proved that the allegations against her were nothing else than an attempt to destroy her career was not founded on any evidence before the arbitrator.

8 Page The arbitrator s finding that he had demonstrated disrespect towards his employer, whereas he was not employed by Ms Rampai but by the respondent was illogical Lastly, the applicant complained that the arbitrator failed to appreciate that the applicant was caught up in a political conflict and was simply doing what he had been told. Evaluation [22] In considering the award in the light of the record and the arbitrator s reasoning, the following conclusions can be drawn: 22.1 An essential feature of the charges against the applicant was that he had made what were essentially false allegations of misconduct about Ms Rampai. I agree with the applicant that it is a complete non sequitur for the arbitrator to have concluded that because Ms Rampai was reinstated by the Council it necessarily meant that the charges against her and the finding that she was guilty of seven of those charges therefore meant she was blameless and that there were no grounds for her dismissal. In fact, there was no evidence presented at the arbitration to show that the disciplinary findings against her were wrong or that her dismissal was unfair. It could just as easily have been a reflection of a shift in the balance of political forces in the council following the removal of other councillors Similarly, even if the charges against Ms Rampai had been politically inspired, the fact remains that at the time of the statement being issued by the applicant the factual position was that, wrongly or rightly, she had been found guilty of the charges in question and had been dismissed. It was not unreasonable on the basis of the charges to say that it reflected a lack of capacity on her part. Indeed that may have been a kinder way of expressing the charges The applicant is also correct in stating that what he reported in the interview was a reflection of the stance adopted by the Council at the time

9 Page 9 and he had specifically been given the documents relating to the disciplinary steps taken against her to use as a basis for the interview. The arbitrator completely failed to reflect on his claim that it was fair to say that Ms Rampai had demonstrated a lack of capacity in the light of the majority of charges of which she had been found guilty at the time. There was no evidence that the applicant had done anything more or less than to summarise the factual position of Ms Rampai s disciplinary and employment status at the time. There was no suggestion in the evidence that he had added a malicious note or innuendo to the statement, which demonstrated that he had gone beyond simply stating what the council s stance was at the time The arbitrator was seemingly very influenced by the question whether or not the applicant had acted lawfully, even if he was acting under instruction. It must be said that this appears to have been a preoccupation of the arbitrator rather than part of the respondent s case. In any event, I agree with the applicant that there was simply no evidence that his statement made as a spokesperson for the municipality could be construed as unlawful. Indeed the absurdity of the finding is revealed if one considers whether he would have been guilty of misconduct if he had failed to conduct the interview and provide the media with the council s stance on Ms Rampai s status and conduct as reflected in the decisions it had taken as a result of the disciplinary process. The arbitrator provides no basis for his reasoning that the statements made by the applicant were somehow unlawful. [23] On the basis of the above discussion I am satisfied without having to consider every ground of review that the applicant must succeed on the above basis and that the arbitrator s findings of his guilt cannot reasonably be justified on the evidence before him. [24] As the arbitrator s finding should be replaced by a finding that the applicant was not guilty, the issue of appropriate relief arises. There was no evidence led to suggest that reinstatement would be impracticable. In the light of the finding that the applicant was in fact simply conveying the current council s position as

10 Page 10 it was at the time, there is no reason why his reinstatement should present difficulties as his own actions should not be viewed as being personally or politically motivated. Moreover, there was no evidence presented that his reinstatement would be intolerable. [25] In the circumstances, I see no bar to his reinstatement save that some allowance should be made for the long delay between filing the founding papers and the supplementary affidavit and for the late filing of the review application. The period for which condonation was required was the period from 28 October 2010 up to and including 25 November 2010, amounting to approximately one month. Allowing for a three month period from the filling of the founding affidavit to the filing of the supplementary affidavit as a reasonable period within which this could be done, the gap from the end offebruary 2011 until the filing of the supplementary affidavit in terms of Rule 7A(8) on 16 March 2012 is excessively long in my view and should not form part of the period for which backpay should be calculated. In summary the payment of backpay in consequence of the order of reinstatement should be reduced by twelve and a half months for that delay. Likewise it would be inequitable for the delay in judgment being delivered to unduly benefit the applicant, so the payment of backpay should be reduced by half of that period which is approximately nine months. All in all, the adjustment will amount to twenty-two and a half months remuneration. [26] As no costs were sought if the application was unopposed no costs order is required. Order [27] In light of the above: 27.1 The applicant s late filing of his review application is condoned The finding of the third respondent dated 6 September 2010 under case number FSD that the applicant s dismissal on 6 October 2009 was substantively fair is reviewed and set aside.

11 Page The third respondent s finding is substituted with a finding that the applicant was not guilty of the charges for which he was dismissed and that his dismissal was substantively unfair The first respondent must reinstate the applicant with retrospective effect to 6 October 2009 on the same terms and conditions which applied to him at the date of his dismissal, provided that the applicant tenders his services to the first respondent within fourteen (14) calendar days of receipt of this judgment In consequence of the applicant s reinstatement, the first respondent must pay the applicant backpay from the date of his dismissal on 6 October 2009 until the date he tenders his services in accordance with paragraph [27.4] above, calculated at the rate of remuneration he received on the date of his dismissal, less an amount equivalent to twenty-two and a half (22,5) months remuneration The payment of backpay must be made within 21 days of the applicant tendering his services to the first respondent 27.7 In the event the parties are unable to agree on the quantum of applicant s monthly remuneration at the date of his dismissal, either party may apply to this court to have that amount determined No order is made as to costs. R LAGRANGE, J Judge of the Labour Court of South Africa

12 Page 12 APPEARANCES: APPLICANT: FIRST RESPONDENT: P Venter instructed by Horn & Van Rensburg No appearance