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[2013] ZASCA 37
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Nel v Oudtshoorn Municipality (247/2012) [2013] ZASCA 37; (2013) 34 ILJ 1737 (SCA) (28 March 2013)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 247/2012
Not Reportable
In the matter between:
PIERRE ANDRÉ NEL
...................................................................
APPELLANT
and
OUDTSHOORN MUNICIPALITY
...........................................
RESPONDENT
Neutral citation:
Nel v
Oudtshoorn Municipality
(247/2012)
[2013] ZASCA 37
(28 March
2013)
Coram:
Mpati P, Nugent,
Pillay JJA, Schoeman and Mbha AJJA.
Heard: 28 February 2013
Delivered: 28 March 2013
Summary: Review –
Local Government: Municipal Systems Act 32 of 2000
–
reinstatement of municipal manager after dismissal – whether
constitutes fresh appointment requiring compliance with
provisions of
the Act.
ORDER
On appeal from:
Western
Cape High Court (Erasmus J)
The appeal is dismissed with
costs including the costs of two counsel.
___________________________________________________________
JUDGMENT
SCHOEMAN AJA (MPATI P, NUGENT
and PILLAY JJA and MBHA AJA CONCURRING)
[1] The respondent is the
Oudtshoorn Municipality, established in terms of the Local
Government: Municipal Structures Act, 117 of
1998 (Municipal
Structures Act). The appellant – Mr Nel – is a member of
the respondent’s municipal council (the
council). The second
respondent – Mr Pietersen – is the municipal manager of
the first respondent.
[2] Mr Pietersen was appointed
municipal manager in August 2007. Towards the end of 2008 the council
instituted disciplinary proceedings
against Mr Pietersen on two
charges of misconduct. The disciplinary body found him guilty of the
charges and recommended that he
be summarily dismissed. The
recommendation was accepted by the council and in March 2009 he was
dismissed. Mr Pietersen challenged
the lawfulness of his dismissal
before the South African Local Government Bargaining Council and the
dispute was referred to arbitration
according to the procedures of
the Bargaining Council. Shortly before the arbitration commenced the
council resolved – on
4 August 2010 – to settle the
dispute on terms that were later embodied in an award made by the
arbitrator by consent. The
terms upon which the dispute was resolved
were, amongst others, that
‘
1.
The employee will be reinstated in his position as Municipal Manager
of the employer with effect from Tuesday 10 August 2010;
2. The reinstatement
of the employee and the employment relationship between the parties
will be subject to and regulated by the
terms and conditions of the
employment agreement concluded between the parties dated 1 August
2007, as amended by the Addendum
thereto dated 5 February 2008’.
[3] Mr Nel applied to the Western
Cape High Court for an order reviewing and setting aside the
resolution taken on 4 August 2010
– under the provisions of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) –
together with certain interim
relief that need not now concern us.
The application was dismissed by Erasmus J and this appeal against
his order is before us
with the leave of this court.
[4] The court below singled out
for decision the question whether the adoption by the council of the
resolution of 4 August 2010
constituted ‘administrative action’
subject to review under PAJA. Holding that it did not he dismissed
the application
on that ground.
[5] I do not think it is
necessary to pronounce upon that issue. It is trite that an appeal
lies against the order of a court and
not its reasons for the order.
In my view the appeal must fail even if the adoption of the
resolution falls within the purview
of PAJA.
[6] The case
made by Mr Nel against the council was that its resolution
constituted the appointment of Mr Pietersen to the position
of
Municipal Manager, which was said to be in conflict with various
provisions of the
Local Government: Municipal Systems Act 32 of 2000
.
He relied in particular on
s 51
(which requires a municipality to
establish and organize its administration in accordance with various
principles),
s 55
(which imposes various duties upon a municipal
manager) and
s 57
(which requires the contract of employment of a
municipal manager to comply with various specified requirements). His
employment
was also said to conflict with Items 2(b) and 9 of the
Schedule to the Act.
1
[7] I do not find it necessary to
detail the various provisions I have referred to. Suffice it to say
that those provisions must
be taken account of when appointing a
municipal manager. Counsel for Mr Nel properly accepted that if the
resolution did not constitute
the appointment of Mr Pietersen to that
position then the appeal must fail.
[8] The
resolution, in terms, was to ‘reinstate’ Mr Pietersen to
his former position. In
Jackson v
Fisher's Foils Ltd
[1944] 1 All ER 421
Humpreys J quoted with approval the following dictum in
Dixon
(William) Ltd v Patterson
1943 SC (J)
78
2
as to the meaning of ‘reinstatement’:
‘
The
natural and primary meaning of “to reinstate” as applied
to a man who has been dismissed (
ex
hypothesi
without
justification) is to replace him in the position from which he was
dismissed, and so to restore the
status
quo ante
the
dismissal.’
[9] In E
quity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration
3
Nkabinde J, with reference to the provisions of s
193 of the Labour Relations Act 66 of 1995 (LRA) said the following
on the meaning
of ‘reinstatement’:
‘
The
ordinary meaning of the word “reinstate” is to put the
employee back into the same job or position he or she occupied
before
the dismissal, on the same terms and conditions. Reinstatement is the
primary statutory remedy in unfair dismissal disputes.
It is aimed at
placing an employee in the position he or she would have been but for
the unfair dismissal. It safeguards workers'
employment by restoring
the employment contract. Differently put, if employees are reinstated
they resume employment on the same
terms and conditions that
prevailed at the time of their dismissal.’
4
[10] From the provisions of the
LRA and the cases I have cited it is clear that by reinstating a
dismissed employee the employer
does not purport to conclude a fresh
contract of employment. The employer merely restores the position to
what it was before the
dismissal. That that was the intention and
effect of the resolution is also made clear by paragraph 2, so far as
it provides that
the relationship between the parties would be
‘subject to and regulated by the terms and conditions of the
employment agreement
concluded between the parties dated 1 August
2007…’.
[11] Indeed,
it would be absurd to construe the settlement of a labour dispute on
the terms on which this dispute was settled to
constitute a fresh
appointment. That construction would necessarily require the council
to advertise the position, interview numerous
hopeful applicants, and
then decide who to appoint, which would make it impossible to settle
a labour dispute on these terms, contrary
to the concept of
reinstatement which is the ‘primary statutory remedy in unfair
dismissal disputes’.
5
[12] In my view the resolution
taken by the council did not constitute the appointment of a
municipal manager as contemplated by
the Act. His appointment
occurred in 2007 and the resolution did no more than to restore that
relationship. In those circumstances
the resolution is not
susceptible to review on the grounds now advanced and the appeal must
fail, albeit for reasons different
to those of the court below.
[13]
The
appeal is dismissed with costs including the costs of two counsel.
___________________
I SCHOEMAN
ACTING JUDGE OF APPEAL
APPEARANCES
FOR APPELLANT: G OLIVER
Instructed by
Nic Barrow Attorneys,
c/o J Theron/Werksmans, Cape Town
Naudés Attorneys,
Bloemfontein
FOR RESPONDENT: N ARENDSE SC
(with him C Carrolissen)
Instructed by
Du
n
can
Korabie Attorneys, Wellington
Symington & De Kok,
Bloemfontein.
1
The
Code of Conduct for Municipal Staff Members.
2
At
85.
3
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration
[2008] ZACC 16
;
2009 (1) SA 390
(CC).
4
Para
36.
5
Equity
Aviation
para 36.