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  • IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

    Not Reportable

    CASE NO: JR122/2017

    In the matter between:

    BONGA BALDWIN MAJOLA Applicant

    And

    MEMBER OF THE EXECUTIVE COUNCIL FOR ROADS AND TRANSPORT; GAUTENG PROVICNIAL GOVERNMENT

    HEAD OF TRANSPORT FOR ROADS AND TRANSPORT: GAUTENG PROVINCIAL GOVERNMENT

    First Respondent

    Second Respondent

    Heard: 02 February 2017

    Delivered: 21 February 2017

    JUDGMENT

    TLHOTLHALEMAJE, J

    Introduction:

    [1] The Applicant (in Part A) of his Notice of Motion seeks an order interdicting

    the Respondents from transferring him from his position as Chief Director:

    Registration and Operating Licensing within the Transport Branch to a

    position of Chief Director without portfolio, pending the determination of an

    application (Part B) to review and set aside the decision of the second

  • Respondent (Swartz) taken on 30 August 2016, to transfer him. The

    application in respect of Part B was still to be launched by the Applicant. The

    Respondents opposed the application.

    Background:

    [2] The Applicant is employed at post level 14 and is a member of the Senior

    Management Services (SMS). He started his employment on 01 April 2008 as

    Chief Director and reported to the Deputy Director-General (Transport

    Branch). His responsibilities included overseeing the regulation and control of

    public transport, management of Registration and Monitoring Operating

    Licensing, and also of the Provincial Regulatory Entity Directorates. Central to

    his position is the management and overseeing of road based public transport

    by registering public transport operators; monitoring public transport

    operators, ensuring compliance; issuing operating licenses and management

    of the Gauteng Provincial Regulatory Entity.

    [3] The Applicant alleges that his right to fair labour practices has been violated,

    and that he has been targeted since 2010 whenever he exposed certain

    irregular conduct within the department, by either being transferred to another

    post, or being suspended. On 4 June 2015, he was summarily suspended for

    15 months based on allegations surrounding misconduct related to fruitless

    and wasteful expenditure. This was after he had opened a criminal case of

    fraud pertaining to the salary payments of certain officials without the requisite

    documentation or verification of their salary claims. The charges against him

    were dismissed on 15 August 2016 following a disciplinary hearing, resulting

    in his suspension being uplifted.

    [4] Upon his return on 29 August 2016, he had made a protected disclosure in

    terms of the Protected Disclosure Act 1 to the First Respondent (MEC) in

    respect of irregular expenditure caused by Swartz in contravention of the

    Public Finance Management Act and Treasury Regulations.

    11 Act 26 of 2000

  • [5] The Applicant further averred that on 30 August 2016, he met Swartz who had

    expressed his displeasure at his return on 16 August 2016 immediately after

    he was cleared of the charges against him. Swartz had informed him that his

    suspension ought not to have been uplifted as he should have waited for

    instructions before reporting for duty in view of the Departments intention to

    approach this Court to review and set aside the outcome of the disciplinary

    hearing. The Applicant was then informed inter alia that he was going to be

    transferred from his post to that of Chief Director without portfolio, and was to

    be temporarily assigned new functions that were to be explained to him at a

    later stage. He was also furnished with a letter in this regard which read as

    follows;

    Dear Mr Majola

    OUTCOME OF YOUR DISCIPLINARY HEARING

    1. We write the letter to you to inform you that the Gauteng Department of

    Roads and Transport (The Department) is considering the findings of Mr

    Moshoana including but not limited to whether it can take such findings on

    review.

    2. We have taken notice of the fact that you have, notwithstanding the fact that

    you have not received any communication or instruction from us to return to

    work, nevertheless reported for work. We assume that you have done so as a

    result of the findings of Mr Moshoana and specifically his comment that your

    suspension ought to lapse. We are of the view that Mr Moshoana did not

    have the power to uplift your suspension, but nevertheless take note of the

    fact that he has purported to do so.

    3. In the light of his ruling (the validity of which we reserve the right to challenge

    in a proper forum) and the fact that you have tendered your services, we now

    need to deal with the requirements of your position of Chief Director:

    Registration and Operating Licencing. In this regard we specifically refer to

    the requirement, of which you are well aware, that any person occupying that

    position must subject himself of herself to a security vetting exercise (for the

    appropriate security clearance) as stipulated by the national Strategic

    Alliance Act 39 of 1994 (the security vetting exercise).

  • 4. You will recall that during 2014 the Department had instructed you on

    numerous occasions to subject yourself to the security vetting exercise. In the

    circumstances, you will readily appreciate that it is not possible for the

    Department to allow you to perform duties as Chief Director: Registration and

    Operating Licencing until such time that the security vetting exercise has

    been successfully finalised. To do so would mean that the Department is

    acting unlawfully.

    5. In the circumstances, we have, in the meantime and pending the finalisation

    of the security vetting exercise, considered alternative positions and/or

    functions for you to occupy on a temporary basis, in a less demanding

    security clearance. We have obviously looked for the next most senior

    position that can be occupied by you having regard to your seniority.

    Furthermore, we confirm that the temporary move to an alternative position

    will not result in you losing your current earnings or benefits. It is as we

    emphasise temporary in nature pending the successful finalisation of the

    security vetting exercise. We confirm that you will temporarily occupy the

    position of Chief Director without portfolio, with functions to be outlined in a

    separate communication.

    However, should you prefer another position that also does not require a

    security clearance we are willing to consider that request.

    6. Insofar as the security vetting exercise is concerned you are hereby

    instructed to take such reasonable steps as may be necessary to comply with

    your obligations in that regard, including but not limited to completing such

    applications and submitting such documents, and to avail yourself for any

    engagement that may be required and as may be necessary to enable the

    State Security Agency to fulfil its mandate in this regard.

    7. Should you require any assistance from us to enable you to comply with your

    duty to undergo the security vetting exercise you are to notify me immediately

    in writing so that we can finalise this exercise without further delay with a

    view to, depending on its outcome, allow you to return to your position.

    8. Given the prolonged history of the security vetting saga we wish to put this

    matter behind us as soon as possible. We accordingly request that you

    provide us, by Friday 2 September 206 with a clear plan on how you intend to

    ensure that you comply with your duties in that regard and to confirm that you

    will make sure that it is completed by the end of September 2016 or as soon

    as possible thereafter.

  • 9. We look forward to hearing from you urgently and confirm that you will in the

    meantime occupy the position of Chief Director without portfolio.

    Your faithfully

    Ronald Swartz

    HEAD OF DEPARTMENT

    [6] The Applicant had responded by e-mail on the same day in which he had inter

    alia, stated that;

    a) in June 2015, he was suspended indefinitely and had referred a

    dispute to the Bargaining Council. As the dispute pertained to a

    protected disclosure, he had launched an application before this

    court (Under case number JS831/2015) and was still waiting for

    a trial date;

    b) He was cleared of all allegations against him by Mr Moshoana

    on 15 August 2016 after being on suspension for 15 months;

    c) His removal from his position was without regard to his rights,

    and there was no position of Chief Director without portfolio in

    the Department;

    d) Swartz did not have legal authority to transfer him or change his

    conditions of employment, and even if he had such authority, he

    could not act arbitrarily;

    e) He urged Swartz to immediately reverse his unlawful decision to

    transfer him to the non-existent position, and to do so by 2

    September 2016, failing which he would have no option but to

    approach this Court on an urgent basis to review and set aside

    that decision.

    [7] On 2 September 2016, Swartz responded to the Applicants e-mail, and inter

    alia, stated that;

    a) It was worrisome that as soon as he had returned to work

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