IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG BONGA ... ?· IN THE LABOUR COURT OF SOUTH AFRICA,…

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<ul><li><p>IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG </p><p>Not Reportable </p><p>CASE NO: JR122/2017 </p><p>In the matter between: </p><p>BONGA BALDWIN MAJOLA Applicant </p><p>And </p><p>MEMBER OF THE EXECUTIVE COUNCIL FOR ROADS AND TRANSPORT; GAUTENG PROVICNIAL GOVERNMENT </p><p>HEAD OF TRANSPORT FOR ROADS AND TRANSPORT: GAUTENG PROVINCIAL GOVERNMENT </p><p>First Respondent </p><p>Second Respondent </p><p>Heard: 02 February 2017 </p><p>Delivered: 21 February 2017 </p><p> JUDGMENT </p><p>TLHOTLHALEMAJE, J </p><p> Introduction: </p><p>[1] The Applicant (in Part A) of his Notice of Motion seeks an order interdicting </p><p>the Respondents from transferring him from his position as Chief Director: </p><p>Registration and Operating Licensing within the Transport Branch to a </p><p>position of Chief Director without portfolio, pending the determination of an </p><p>application (Part B) to review and set aside the decision of the second </p></li><li><p>Respondent (Swartz) taken on 30 August 2016, to transfer him. The </p><p>application in respect of Part B was still to be launched by the Applicant. The </p><p>Respondents opposed the application. </p><p> Background: </p><p>[2] The Applicant is employed at post level 14 and is a member of the Senior </p><p>Management Services (SMS). He started his employment on 01 April 2008 as </p><p>Chief Director and reported to the Deputy Director-General (Transport </p><p>Branch). His responsibilities included overseeing the regulation and control of </p><p>public transport, management of Registration and Monitoring Operating </p><p>Licensing, and also of the Provincial Regulatory Entity Directorates. Central to </p><p>his position is the management and overseeing of road based public transport </p><p>by registering public transport operators; monitoring public transport </p><p>operators, ensuring compliance; issuing operating licenses and management </p><p>of the Gauteng Provincial Regulatory Entity. </p><p>[3] The Applicant alleges that his right to fair labour practices has been violated, </p><p>and that he has been targeted since 2010 whenever he exposed certain </p><p>irregular conduct within the department, by either being transferred to another </p><p>post, or being suspended. On 4 June 2015, he was summarily suspended for </p><p>15 months based on allegations surrounding misconduct related to fruitless </p><p>and wasteful expenditure. This was after he had opened a criminal case of </p><p>fraud pertaining to the salary payments of certain officials without the requisite </p><p>documentation or verification of their salary claims. The charges against him </p><p>were dismissed on 15 August 2016 following a disciplinary hearing, resulting </p><p>in his suspension being uplifted. </p><p>[4] Upon his return on 29 August 2016, he had made a protected disclosure in </p><p>terms of the Protected Disclosure Act 1 to the First Respondent (MEC) in </p><p>respect of irregular expenditure caused by Swartz in contravention of the </p><p>Public Finance Management Act and Treasury Regulations. </p><p> 11 Act 26 of 2000 </p></li><li><p>[5] The Applicant further averred that on 30 August 2016, he met Swartz who had </p><p>expressed his displeasure at his return on 16 August 2016 immediately after </p><p>he was cleared of the charges against him. Swartz had informed him that his </p><p>suspension ought not to have been uplifted as he should have waited for </p><p>instructions before reporting for duty in view of the Departments intention to </p><p>approach this Court to review and set aside the outcome of the disciplinary </p><p>hearing. The Applicant was then informed inter alia that he was going to be </p><p>transferred from his post to that of Chief Director without portfolio, and was to </p><p>be temporarily assigned new functions that were to be explained to him at a </p><p>later stage. He was also furnished with a letter in this regard which read as </p><p>follows; </p><p> Dear Mr Majola </p><p> OUTCOME OF YOUR DISCIPLINARY HEARING </p><p>1. We write the letter to you to inform you that the Gauteng Department of </p><p>Roads and Transport (The Department) is considering the findings of Mr </p><p>Moshoana including but not limited to whether it can take such findings on </p><p>review. </p><p>2. We have taken notice of the fact that you have, notwithstanding the fact that </p><p>you have not received any communication or instruction from us to return to </p><p>work, nevertheless reported for work. We assume that you have done so as a </p><p>result of the findings of Mr Moshoana and specifically his comment that your </p><p>suspension ought to lapse. We are of the view that Mr Moshoana did not </p><p>have the power to uplift your suspension, but nevertheless take note of the </p><p>fact that he has purported to do so. </p><p> 3. In the light of his ruling (the validity of which we reserve the right to challenge </p><p>in a proper forum) and the fact that you have tendered your services, we now </p><p>need to deal with the requirements of your position of Chief Director: </p><p>Registration and Operating Licencing. In this regard we specifically refer to </p><p>the requirement, of which you are well aware, that any person occupying that </p><p>position must subject himself of herself to a security vetting exercise (for the </p><p>appropriate security clearance) as stipulated by the national Strategic </p><p>Alliance Act 39 of 1994 (the security vetting exercise). </p></li><li><p>4. You will recall that during 2014 the Department had instructed you on </p><p>numerous occasions to subject yourself to the security vetting exercise. In the </p><p>circumstances, you will readily appreciate that it is not possible for the </p><p>Department to allow you to perform duties as Chief Director: Registration and </p><p>Operating Licencing until such time that the security vetting exercise has </p><p>been successfully finalised. To do so would mean that the Department is </p><p>acting unlawfully. </p><p> 5. In the circumstances, we have, in the meantime and pending the finalisation </p><p>of the security vetting exercise, considered alternative positions and/or </p><p>functions for you to occupy on a temporary basis, in a less demanding </p><p>security clearance. We have obviously looked for the next most senior </p><p>position that can be occupied by you having regard to your seniority. </p><p>Furthermore, we confirm that the temporary move to an alternative position </p><p>will not result in you losing your current earnings or benefits. It is as we </p><p>emphasise temporary in nature pending the successful finalisation of the </p><p>security vetting exercise. We confirm that you will temporarily occupy the </p><p>position of Chief Director without portfolio, with functions to be outlined in a </p><p>separate communication. </p><p> However, should you prefer another position that also does not require a </p><p>security clearance we are willing to consider that request. </p><p> 6. Insofar as the security vetting exercise is concerned you are hereby </p><p>instructed to take such reasonable steps as may be necessary to comply with </p><p>your obligations in that regard, including but not limited to completing such </p><p>applications and submitting such documents, and to avail yourself for any </p><p>engagement that may be required and as may be necessary to enable the </p><p>State Security Agency to fulfil its mandate in this regard. </p><p>7. Should you require any assistance from us to enable you to comply with your </p><p>duty to undergo the security vetting exercise you are to notify me immediately </p><p>in writing so that we can finalise this exercise without further delay with a </p><p>view to, depending on its outcome, allow you to return to your position. </p><p> 8. Given the prolonged history of the security vetting saga we wish to put this </p><p>matter behind us as soon as possible. We accordingly request that you </p><p>provide us, by Friday 2 September 206 with a clear plan on how you intend to </p><p>ensure that you comply with your duties in that regard and to confirm that you </p><p>will make sure that it is completed by the end of September 2016 or as soon </p><p>as possible thereafter. </p></li><li><p> 9. We look forward to hearing from you urgently and confirm that you will in the </p><p>meantime occupy the position of Chief Director without portfolio. </p><p> Your faithfully </p><p>Ronald Swartz </p><p>HEAD OF DEPARTMENT </p><p>[6] The Applicant had responded by e-mail on the same day in which he had inter </p><p>alia, stated that; </p><p>a) in June 2015, he was suspended indefinitely and had referred a </p><p>dispute to the Bargaining Council. As the dispute pertained to a </p><p>protected disclosure, he had launched an application before this </p><p>court (Under case number JS831/2015) and was still waiting for </p><p>a trial date; </p><p>b) He was cleared of all allegations against him by Mr Moshoana </p><p>on 15 August 2016 after being on suspension for 15 months; </p><p>c) His removal from his position was without regard to his rights, </p><p>and there was no position of Chief Director without portfolio in </p><p>the Department; </p><p>d) Swartz did not have legal authority to transfer him or change his </p><p>conditions of employment, and even if he had such authority, he </p><p>could not act arbitrarily; </p><p>e) He urged Swartz to immediately reverse his unlawful decision to </p><p>transfer him to the non-existent position, and to do so by 2 </p><p>September 2016, failing which he would have no option but to </p><p>approach this Court on an urgent basis to review and set aside </p><p>that decision. </p><p>[7] On 2 September 2016, Swartz responded to the Applicants e-mail, and inter </p><p>alia, stated that; </p><p>a) It was worrisome that as soon as he had returned to work, he </p><p>had threatened to go to court; </p><p>b) That he had explained the reason why he could not continue to </p><p>occupy his position in the light of the fact that he had not </p></li><li><p>secured the requisite security clearance and had attempted to </p><p>assist him to fulfil that requirement; </p><p>c) That he had not indicated the steps he intended to take to fulfil </p><p>the requirement, and had instead threatened legal action, which </p><p>approach was unreasonable and unacceptable; </p><p>d) Swartz was not permitted to allow him, until he was granted top </p><p>security clearance to continue in his position; </p><p>e) The decision to move him was not permanent and was not a </p><p>transfer; </p><p>f) The invitation to discuss any alternatives still stood. </p><p>The submissions and evaluation: </p><p>[8] The application is founded on the provisions of section 77 (3) of the Basic </p><p>Conditions of Employment Act2. The Applicant contends that the Respondents </p><p>have effected a unilateral variation of his contract of employment and </p><p>conditions of service; prevented him from performing his responsibilities and </p><p>functions; and have acted unlawfully in transferring him from his post to the </p><p>one without portfolio. </p><p>[9] It is trite that for an applicant to be successful in an application for an interim </p><p>interdict he must establish (i) a prima facie right, even though open to some </p><p>doubt; (ii) a well-grounded apprehension of irreparable harm if the interim </p><p>relief is not granted; iii) absence of an alternative remedy; (iv) a balance of </p><p>convenience in favour of granting the interim relief. Other than these </p><p>requirements, the key question in such cases is whether the application </p><p>deserves the urgent attention of this court. </p><p>[10] The Respondents opposed this application based on various grounds. These </p><p>are that; </p><p>a) the matter was not urgent; alternatively </p><p>b) that the urgency was self-created; </p><p>c) that since the main issue pertained to a challenge of a transfer, </p><p>the Court lacked jurisdiction to determine the matter; 2 Act 75 of 1997 </p></li><li><p>d) that an interdict could not be granted in respect of a decision </p><p>that was taken five months ago, and which had since been </p><p>implemented; </p><p>e) that the effect of granting the interdict would be to require the </p><p>Respondents to do what is unlawful; </p><p>f) that the Applicant has not complied with the provisions of </p><p>section 35 of the Public Service Act 3, and was accordingly </p><p>precluded from approaching the Court for relief; </p><p>g) the reassignment was neither unfair nor unlawful </p><p>The issue of security vetting: </p><p>[11] The issue of the Applicants security vetting is according to the Respondents, </p><p>central to his removal from his position, whilst the Applicant holds the view </p><p>that he was being merely targeted and victimised for exposing irregularities. In </p><p>my view, if at the end, it is concluded that the reinstatement of the Applicant in </p><p>his position would be unlawful in the light of the requirements imposed upon </p><p>him by the State Security Agency and other legislative provisions to be dealt </p><p>with shortly, this should be the end of the matter, irrespective of any findings </p><p>on urgency. </p><p>[12] The Respondents main reasoning behind the moving of the Applicant from </p><p>his position was that he had to have the required security vetting, which he </p><p>had allegedly avoided over the past 4 to 5 years. It was argued on behalf of </p><p>the Applicant that the issue of security vetting was a red herring, as the real </p><p>reason was to retaliate against the Applicant after he had raised concerns </p><p>surrounding malfeasance in the Department. </p><p>[13] In summary, the Applicant contended that since 2010 when he first declined </p><p>to recommend payments of various invoices of a specific service provider in </p><p>the amount of some R29m, he has been subjected to various retaliatory </p><p>measures by the Respondents whenever he raised concerns in the </p><p>Department, necessitating that he approach various courts for protection. The </p><p>latest retaliatory measure followed upon the protected disclosure he had </p><p> 3 Act 103 of 1994 </p></li><li><p>made on 29 August 2016 about irregular expenditure caused by Swartz in </p><p>contravention of PFMA and Treasury Regulations. This had led to his removal </p><p>from his post, prompting him to launch this application. </p><p>[14] In terms of the provisions of the National Strategic Intelligence Act4, the State </p><p>Security Agency (SSA) has a mandate to perform counter intelligence and </p><p>security screening investigations and vetting of employees. The provisions of </p><p>the Public Service Regulations, 2001 further require of certain officials to </p><p>subject themselves to a security clearance where the duties attached to their </p><p>posts require such a clearance. The same requirements are contained in the </p><p>SMS Handbook, which also lists the failure to comply with, or contravention of </p><p>an Act, regulation or legal obligation, and refusal to obey security regulations </p><p>as forms of misconduct5. </p><p>[15] I did not understand the Applicants case to be that his position did not require </p><p>of him to submit himself to a security vetting exercise. That exercise is a </p><p>requirement for persons in his position, and also in line with clause 1.2.3 of his </p><p>contract of employment and the legislative provisions mentioned above. He </p><p>nevertheless contends that he has complied with those requirements. The </p><p>Respondents however hold a different view. </p><p>[16] It is my view that there is no merit in the Applicants contention that the raising </p><p>of this requirement as a justification for his removal from his position is mere </p><p>red herring. My conclusions in this regard are based on the following </p><p>observations; </p><p>16.1 The issue of the Applicants need for security vetting dates as </p><p>far back as 2012 when he became aware of it. On 24 May 2013, </p><p>the Gauteng arm of the SSA wrote a letter to the MEC, </p><p>indicating that some officials within the department, including the </p><p>Appli...</p></li></ul>

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