Pretoria - The Labour Court in Johannesburg voiced its dismay at the “now familiar and habitual abuse of the urgent court by employees, especially those who occupy senior positions in all spheres of government, particularly in municipalities.
“These employees, after being placed on prolonged periods of precautionary suspensions and when called upon to answer to the charges of misconduct, will take all means necessary in order to avoid the conclusion of those inquiries,” Judge Edwin Tlhotlhalemaje said.
This was during a judgment following an application by a senior officer at the Maquassi Hills Municipality in the North West.
The officer, who is not named as he is still facing charges of severe misconduct and dishonesty, turned to court urgently to have these disciplinary proceedings against him overturned.
Judge Tlhotlhalemaje said applications such as this were an abuse of the court.
When all the strategies deployed to avoid the hearing came to naught, the next step was to seek sanctuary from the court, with contrived and legally unsustainable urgent applications, with the hope that the serious charges of misconduct would vanish.
“The stratagem employed by these employees, ably assisted and cheered on by their legal representatives, is indeed simple but pretentious, and has regularly played itself out in this court on the urgent roll.”
The judge said the strategy was put into gear once the employee was served with the charges and the notice to appear at the inquiry. He commented that this was the stage when the “legal games” usually started, as the employee would use every move in the book to try to stall the hearing.
Part of this, the judge said, was the tactic where an employee produced a medical certificate hours before the disciplinary hearing was due to start.
“The other favourite as part of the stalling tactics is the sudden disappearance or unavailability of the employee’s witnesses from the workplace. In some cases, more time may be required to consult with or find the identified witnesses.”
Judge Tlhotlhalemaje said in his experience, once the hearing was to commence, and when the penny dropped that the employee had to answer to the charges of misconduct, the ultimate strategy at the hearing was to seek the recusal of the chairperson on a variety of nonsensical grounds.
This, the judge said, then resulted in another prolonged process. When this did not work, the judge said, the next move usually was to turn to court. These “antiquated shenanigans, exhausting as they were, in the end come back to bite the employees”, the judge said, as at the end they were saddled with the legal costs.
“These frivolous applications have caused strain on the limited judicial resources of this court. This message has clearly not filtered through to employees or their legal representatives.”
He added that these antics were truly exhausting, not only to the court’s resources but also because, in the end, they turn out to be financially draining for the already financially depleted municipalities or government departments and its entities.
The facts of the case involving the Maquassi Hills officer was a reflection of the above and a dose of déjà vu, Judge Tlhotlhalemaje said.
The officer had to appear before an inquiry in August last year, to answer to charges of gross dishonesty. These charges mainly pertained to alleged misrepresentations he had made when applying for his post at the municipality.
The applicant apparently tried everything to stall the hearing and when he was refused yet another postponement, he sent a sick note to the chairperson of the inquiry.
Other than the doctor’s practice number being indicated on the copy, there was no indication as to where the medical practice was based. The medical certificate simply indicated that consultations were held with the applicant and sick leave was recommended for a few days – the exact days when the hearing was scheduled.
When he had to appear before the hearing on the day his sick leave had lapsed, he also did not pitch.
The municipality began presenting the evidence of its witnesses before the chairperson, and the hearing was due to continue on February 13. On this date the applicant did pitch, but he challenged the appointment and objectivity of the chairperson.
When his objection was overturned following a lengthy process, the applicant simply said he could not make it on the days scheduled for the hearing. The hearing went ahead without his input, and the chairperson was about to make a finding when the applicant turned to court.
“It is apparent that the applicant has taken all measures necessary and, with the misguided legal muscle behind him, to stall and avoid answering to the serious allegations of misconduct against him before the disciplinary inquiry.”
The judge referred to some of the applicant’s objections against the inquiry as “hogwash”.
Initially the applicant urgently sought to interdict the chairperson from making any findings against him and, in the end, sought an order declaring the appointment of the chairperson to be null and void.
But the court turned down the application and ordered that the applicant foot the municipality’s legal bill.
Pretoria News