IN THE LABOUR COURT OF SOUTH AFRICA, …

1 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.

2 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 [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 [4] Upon his return on 29 August 2016, he had made a protected disclosure in terms of the Protected Disclosure Act1 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 Department s intention to approach this COURT to review and set aside the outcome of the disciplinary hearing.

5 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.

6 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).

7 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.

8 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.

9 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.

10 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.