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[2017] ZAECPEHC 43
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Mlokothi v Trollip and Others (193/2017) [2017] ZAECPEHC 43 (5 September 2017)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 193/2017
In
the matter
between:
VUYO
MLOKOTHI
Applicant
And
ATHOL
TROLLIP
First Respondent
NELSON
MANDELA BAY METROPOLITAN
MUNICIPALITY
Second Respondent
JOHANN
METTLER
Third Respondent
Coram:
Chetty J
Heard:
24 August 2017
Delivered:
5 September 2017
JUDGMENT
Chetty
J:
[1]
The
Constitution
of the Republic of South Africa
,
1996, vests the executive and legislative authority of a
municipality in its Municipal Council which is enjoined by s 54A
(1)
of the
Local
Government Municipal Systems Act
[1]
(the Act), to appoint a municipal manager as head of its
administration. During 2016, the second respondent advertised the
post, inadvertently classified as City Manager, in a local tabloid.
It is common cause that the applicant duly completed and signed
the
official application form thereby affirming the correctness of his
responses to the questionnaire. Pursuant to a comprehensive
interview
process of the six short listed candidates, the applicant emerged as
the preferred contender. It is furthermore common
cause that on 27
October 2016, the municipal council (the council) resolved (i) to
appoint the applicant to the post with effect
from 1 December 2016,
and (ii) that the then acting municipal manager, Mr
Johann
Mettler
(
Mettler
)
continue in his acting capacity until 31 December 2016.
[2]
In its aftermath, a raft of missives were exchanged between the first
respondent, the executive mayor, and the applicant. I
shall in due
course elaborate on its content, but am constrained to first continue
with the
sequelae
of the appointment. On 25 November 2016, the first respondent
notified the applicant that the council had resolved to rescind the
decision to appoint him as its municipal manager and had, in his
stead, appointed
Mettler
to the position. The aforementioned resolution galvanised the
applicant into action and in due course ushered him through the
portals of this court.
[3]
In his notice of motion filed during January 2017, the applicant
challenged the rescission of his appointment, and sought relief
formulated as: -
“
1.
That the decision of the Nelson Mandela Bay Metropolitan Municipality
of 27 November
2016, rescinding the appointment of the applicant as
City Manager, be declared invalid.
2.
That the decision of the Nelson Mandela Bay Metropolitan Municipality
of 27 November
2016 rescinding, the appointment of the applicant as
City Manager be retrospectively set aside.
3.
That the applicant’s appointment by the Nelson Mandela Bay
Metropolitan
Municipality on 27 October 2016 be confirmed as of 1
December 2016.
4.
That the respondents be held jointly and severally liable for the
cost of this
application, such costs to be paid on attorney and own
client scale.”
[4]
The application is opposed. Prior to the hearing, the applicant gave
notice of his intention to apply for condonation for the
late filing
of his replying affidavit and for joinder of
Mettler
as the third respondent. The respondents properly assented hereto and
the interlocutory applications were accordingly granted.
As per the
citation,
Mettler
is the third respondent.
Jurisdiction
[5]
The application is resisted, firstly, on the ground that the
rescission resolution does not constitute administrative action
reviewable under
Promotion
of Administrative Justice Act
[2]
(
PAJA
)
and, being a
“
quintessential
labour-related matter”
,
a dispute to be processed through the appropriate mechanisms as
prescribed in the
Labour
Relations Act
[3]
(LRA)
.
In advancing his argument that the applicant was obliged to initiate
these proceedings in the Labour Court, Mr
Kennedy
,
who appeared together with Ms
Ngwenya
for the respondents, submitted that given the applicant’s
admission that an employment relationship was concluded between
himself and the second respondent, the only appropriate forum to
ventilate his dispute was the CCMA, a Bargaining Council or the
Labour Court.
[6]
As authority for his submissions, I was referred to extracts from two
judgments emanating from the Constitutional Court, the
first, from
Chirwa
v Transnet Limited and Others
[4]
,
where Ngcobo J, said the following:-
“
[143]
Support for the view that the termination of the employment of a
public sector employee does not constitute administrative
action
under section 33 can be found in the structure of our Constitution.
The Constitution draws a clear distinction between administrative
action on the one hand and employment and labour relations on the
other. It recognises that employment and labour relations and
administrative action are two different areas of laws. It is true
they may share some characteristics. Administrative law falls
exclusively in the category of public law while labour law has
elements of administrative law, procedural law, private law and
commercial law.103
[144]
The Constitution contemplates that these two areas will be subjected
to different forms of regulation, review
and enforcement. It deals
with labour and employment relations separately. This is dealt with
in section 23 under the heading “Labour
Relations”. In
particular, section 23(1) guarantees to “[e]veryone . . . the
right to fair labour practices”.
The Constitution contemplates
that labour relations will be regulated through collective bargaining
and adjudication of unfair
labour practices. To this extent, section
23 of the Constitution guarantees the right of every employee and
every employer to form
and join a trade union or an employers’
organisation, as the case may be.”
And
the second from
Gcaba
v Minister of Safety and Security and Others
[5]
where van der Westhuizen J, reasoned as follows: -
“
[64]
Generally, employment and labour relationship issues do not amount to
administrative action within
the meaning of PAJA. This is recognised
by the Constitution. Section 23 regulates the employment relationship
between employer
and employee and guarantees the right to fair labour
practices. The ordinary thrust of section 33 is to deal with the
relationship
between the State as bureaucracy and citizens and
guarantees the right to lawful, reasonable and procedurally fair
administrative
action.99Section 33 does not regulate the relationship
between the State as employer and its workers. When a grievance is
raised
by an employee relating to the conduct of the State as
employer and it has few or no direct implications or consequences for
other
citizens, it does not constitute administrative action.”
[7]
Finding succour in the aforementioned dicta, Mr
Kennedy
thus
submitted that the applicant, having elected not to pursue the
remedies available to him under ss 191 and 193 of the
LRA
,
is precluded from approaching this court in an employment dispute
based on a review of administrative action under
PAJA
.
The argument, whilst persuasive, ignores the legal basis pleaded for
invoking this court’s jurisdiction. In his founding
affidavit
the applicant averred that: -
“
23.
I am reliably informed that the Resolution of the second respondent,
which set aside my appointment
as City Manager of the second
Respondent, was unlawful, invalid and stands to be set aside for the
reasons more fully set out below.
24.
In order to satisfy on lawful grounds, the decision to rescind the
Council Resolution appointing
me as City Manager, the second
respondent is enjoined to ensure that such grounds are fair and
justifiable. In the absence of a
fair and/or reasonable and/or
justifiable ground for rescinding the Council Resolution, it follows
that the rescission of the Council
Resolution was for arbitrary
reasons and therefore unfair, lacking legal validity.”
[8]
Whilst it is correct that the applicant acknowledged that an
employment relationship eventuated, the claim, as pleaded, clearly
did not purport to be one which falls within the exclusive
jurisdiction of the Labour Court. Properly interpreted, it is,
notwithstanding
its inelegant formulation, rooted in administrative
action, which the applicant avers was unreasonable, unlawful and
procedurally
unfair. The objection raised to this court’s
competence to adjudicate the matter cannot thus be sustained. I turn
thus to
the substantive issues raised.
The
Legality Principle
[9]
The applicant’s contention that the rescission resolution is
ultra vires
and unlawful, however, proceeds from a
misinterpretation of s 54A (3) of the Act, and necessitates an
examination of the text.
It provides as follows: -
“
(3) A decision
to appoint a person as municipal manager, and any contract concluded
between the municipal council and that person
in consequence of the
decision, is null and void if-
(a)
the
person appointed does not have the prescribed skills, expertise,
competencies or qualifications; or
(b)
the
appointment was otherwise made in contravention of this Act.”
[10]
It will be gleaned from the aforegoing that the section merely
explains that the person designated to fill the position of
a
municipal manager must have the prescribed skills, expertise,
competencies and qualifications and it then deals with how and
when a
person may be appointed as a municipal manager. It stipulates that if
any of the prohibited grounds are breached the appointment
is
rendered null and void,
ipso
iure
.
To submit, as Mr
Moorhouse
did, that the section means that a council is precluded from
rescinding an earlier resolution in circumstances other than those
listed in the subsections is simply untenable. As Mr
Kennedy
correctly pointed out, the specified instances do not purport to be
exhaustive, are not stated to be nor necessarily implied. In
my view,
the interpretation contended for is strained and fails to appreciate
the full extent of the executive authority which
the Constitution
vests in a Council.
The
Review
[11]
There are however, as I shall adumbrate upon, more than sufficient
grounds for the Council rescinding its earlier resolution.
As a
precursor to determining the question whether the rescission
resolution was, as contended for, arbitrary, unfair and lacking
in
legal validity, it is apposite to posit the fundamental role a
municipal manager exercises in the administration and functioning
of
a municipality. He is, as the Constitutional Court reiterated,
“
a
key structure of a municipality and not merely a personnel
appointment as contemplated in s 160 (1) (d) of the Constitution.”
[6]
His
core functions were explained by van der Merwe AJA in
City
of Johannesburg Metropolitan Municipality and Others v Hlope and
Others
[7]
as follows: -
“
[19]
Section 55 of the Local Government: Municipal Systems Act 32 of 2000
(the “Systems Act”)
provides that the municipal manager
is the head of administration and the accounting officer of a
municipality. Subject to the
policy directions of the municipal
council, the municipal manager is responsible and accountable for the
management of the municipality’s
administration in accordance
with the Systems Act and other legislation applicable to the
municipality. The municipal manager is
also responsible and
accountable for the management of the provision of services to the
local community in a sustainable and equitable
manner. Moreover, as
accounting officer he or she is responsible and accountable for all
income, expenditure and assets of the
municipality and for the
discharge of all its liabilities. The municipal manager, therefore,
heads the administration of a municipality
and holds its purse. This
necessarily means that the city manager has the power and the duty to
ensure that the City complies with
its obligations in terms of a
court order.”
[12]
It is evident from the aforegoing that a prospective municipal
manager’s integrity and, above all, trustworthiness, are
traits
of cardinal importance and, against that character recognition, I
turn to consider the competing versions of the circumstances
which
preceded the rescission resolution. In his founding affidavit
the applicant adverted to correspondence which he received
from the
first respondent concerning his previous employment at the State
Information and Technology Agency (SITA). The first email
sought
information from him about his employment at SITA and posed the
question
“
is
there anything there that I need to know about or be concerned
about?”
He
responded as follows: -
“
Dear
Executive Mayor. I joined Sita on the first of July 2014 on a three
year contract which was to end in June 2017. Early this
year (around
March) the New CEO informed me and another deputy CEO in confidence
of his desire to move certain functions across
various divisions
(basically to restructure some divisions to optimise organizational
performance) I supported the initiative but
simultaneously suggested
to him that we agree on a transition to allow me to persue my other
work interests beyond SITA. By the
middle of July this year I then
suggested to him that I was ready to resign to which we agreed with
the proviso that I be available
to assist with anything that he may
ask me to.
Effectively
therefore I resigned in July from the Company
.
With regard to my possible starting date at NMBM, I did indicate that
a two weeks notice period would be sufficient to assume
the new
duties.”
(Emphasis
added)
[13]
A further querying email from the first respondent
“
.
. . so there was no matter of suspension? I know how the rumour mill
works . . .”
elicited
the following response: -
“
Thanks Executive
Mayor for this. As you say the rumour mill can do tainting of one’s
image.
Just
to put you at ease about this
,
let me clarify what happened. At SITA I was the Executive in Charge
of Corporate services which included five departments, one
of which
was Human Capital Management (HCM).
The
HOD of HCM was then suspended by the CEO
around May (on one friday)
when
I was away on a family funeral
.
This followed some audits that we had launched in HCM. On my return
I
was puzzled that one of my immediate subordinates was suspended
without my knowledge. Around the same time the CEO suspended the
Company Secretary.
I raised this matter with the CEO and three weeks later I
then
proposed to him that given that
the HOD concerned reported to me,
how
about I step aside (more of a special leave)
and allow the investigation not to be seen to have my hand or
potentially be seen to be blocked by me. We both agreed on this
approach.
By
the time I resigned there was nothing against me and thus am not
worried about my record in the company.
”
(Emphasis
added)
[14]
On 14 November 2016, the applicant addressed the following email to
the first respondent: -
“
This
serves to acknowledge the receipt of your emailed letter dated 11
th
of November 2016 received at 4:56 pm on the same day.
At the outset, I must
state that I welcome the Executive Mayor’s efforts to ensure
that the new municipal manager which the
council resolved to appoint
on the 27
th
of October 2016
brings with him credentials
and a record that
may not tarnish the image of the office of the
Executive Mayor in particular and that of the council in general.
As stated before,
I
did voluntarily resign from SITA on the 15
th
of July 2016
freely and without coercion of any kind and so far
as I know there are no
“material facts” which council
needed to know surrounding my departure
from SITA and which could
“materially affect” the council decision to employ me as
the municipal manager of the NMBM.
I have, for ease of reference,
attached my certificate of service from SITA dated 31
st
July 2016
which explicitly states the reason for me to leave
SITA.
Given the
classification of SITA as a National Key Point and the confidentially
clauses of the agreement
,
there would not have been a need for me to disclose this matter to
you or to council. As part of the mutual separation agreement,
the
parties had agreed on record not to disclose the terms of the
agreement to any third party
.
The parties further
agreed that should the employee commit any breach of obligations in
terms of the agreement then the company
shall be entitled, in its
absolute discretion, to elect to claim damages from the employee
arising out of the employee’s
breach and or pursue any other
remedies available in law. Based on this agreement, it would also be
legally incorrect for me to
sign the consent form that you have sent
me.
Lastly, I wish to place
it on record that there is no outstanding or pending disciplinary
cases or criminal charges against me arising
from my employment with
SITA.”
(Emphasis
added)
[15]
The aforementioned email is a model of self-aggrandizement, lacking
in candour and moreover, a complete distortion of the truth.
The
applicant could not, on receipt of the first respondent’s email
have laboured under any misapprehension. He had, prior
to being
informed of the appointment resolution, been made aware of
“
rumours”
then circulating and his
responses were designed to allay the first respondent’s fears
thereanent. Reliance upon SITA’s
classification as a National
Key Point and calling into aid the confidential character of the
mutual separation agreement concluded
between himself and SITA as
lawful impediments to him disclosing the information sought was
disingenuous.
[16]
The fact that the applicant subsequently disclosed the separation
agreement does not inure to his benefit. It is quite clear
that he
deigned to comply with the request upon SITA’s stance that his
election to disclose the content of the agreement
was determinative
of the matter. As it turned out, the information sought to be
suppressed lacked the requisite characteristics
of confidentiality
necessitating its non-disclosure. It’s incorporation into the
separation agreement was for his benefit,
and his alone.
[17]
Clause 4 thereof, under the rubric,
“
Separation
and Payment”
recorded
the following: -
“
The
Parties have agreed that the Employee resigns on a voluntary basis
with immediate effect. The Company undertakes to terminate
all and
any pending disciplinary processes against the Employee at the
Termination Date. The Company undertakes to pay the Employee’s
final proportionate salary, being that for July 2016.”
[18]
The aforementioned revelation that the applicant’s voluntary
resignation actuated SITA’s decision to terminate
disciplinary
proceedings against him is irreconcilable with the information
furnished in the employment application form submitted
to the second
respondent. Therein, in response to a question whether he had
resigned pending the finalisation of disciplinary proceedings,
he
replied in the negative. That answer was patently false. As
adumbrated hereinbefore, an incumbent to the position of a municipal
manager is required, given the ambit of the functions delineated in s
55 of the Act to be a person of unquestionable honesty and
integrity. The question posed in the application form was
pertinent thereto and created an obligation to speak the truth.
Notwithstanding the glaring inconsistency, the applicant has the
temerity to state
“
.
. . at no point during that whole process of my appointment did
I not disclose material facts within the confines of the
non-disclosure agreement and the law.”
[19]
The gravamen of the complaint, viz, that the rescission resolution
was thus arbitrary, unlawful and legally invalid is, upon
a
conspectus of the evidence adduced, without any substance. The first
respondent’s apprehension, albeit informed by rumour,
was
validated by the content of the separation agreement which
ineluctably established the applicant’s
mala
fides
.
The council’s decision was therefore fully justified and not
arbitrary.
[20]
The further contention, that the rescission resolution, which the
applicant avers terminated his employment with the second
respondent,
contravened the Local Government Regulations on Appointment and
Conditions of Employment for senior managers is likewise
misconceived. This bald statement, at variance with the averments
made in his replying affidavit, is clearly a last gasp attempt
to
inveigle this court into affording him relief. It is singularly
lacking in substance.
[21]
In the result the following order will issue:
The
application is dismissed with costs, including that of two (2)
counsel.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the Applicant:
Adv A.C. Moorhouse
Instructed
by
Machaba Attorneys c/o Jacques Du Preez Attorneys, 96 Mangold Street,
Newton Park, Port Elizabeth
Ref: J du Preez
Tel: (041) 365 2232
Obo the
Respondents
Adv P. Kennedy / Adv Z Ngwenya
Instructed
by
Gray Moodliar Attorneys, 19 Raleigh Street, Central, Port Elizabeth
Ref: W Gray
Tel: (041) 586 3920
[1]
Act No, 32 of 2000
[2]
Act No, 3 of 2000
[3]
Act No, 66 of 1995
[4]
2008 (3) BCLR 251 (CC)
[5]
2010 (1) BCLR 35 (CC)
[6]
Executive Council of the Western Cape v Minister of Provincial
Affairs RSA
1999
(12) BCLR 1360
(CC) at [109]
[7]
[2015] 2 ALL SA 251
(SCA) at para 19.