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[2019] ZAECPEHC 74
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Ndoyana v Nelson Mandela Bay Municipality (CA581/2019) [2019] ZAECPEHC 74 (12 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO. CA 581/2019
Date heard: 15 August
2019
Date
Delivered: 12 November 2019
In
the matter between:
MZWANELE
LENMOD NDOYANA
Applicant
and
NELSON
MANDELA BAY MUNICIPALITY
Respondent
JUDGMENT
RUGUNANAN,
AJ:
[1]
A written contract of employment concluded on 28 February 2014
between the applicant and
the Nelson Mandela Bay Municipality (the
respondent) incorporated the following clause:
“
15.2
The Employer will be entitled to terminate the Employee’s
contract of employment for any
sufficient reasons recognised by law,
provided that the Employer must comply with the disciplinary code and
procedures…”
[2]
The
contract defines “
the
Employer”
as
“
the
Nelson Mandela Bay Municipality established in terms of the Local
Government: Municipal Structures Act … herein represented
by
Mpilo Mbambisa in his capacity as City Manager on behalf of the
Municipality”.
[1]
[3]
The
applicant was appointed and employed as the respondent’s
Executive Director: Corporate Services. The term of his appointment
was effective from 1 January 2014 terminating on 31 December 2019.
[2]
The applicant was appointed by the Municipal Council of the
respondent in accordance with section 56 of the Local Government:
Municipal Systems Act
[3]
(“the
Systems Act”). He was at all times a senior manager and was
therefore subject to the Local Government: Disciplinary
Regulations
for Senior Managers (“the Regulations”).
[4]
It is common cause that the disciplinary code mentioned in the
abovementioned clause is embodied in the Regulations.
[4]
On 30 July
2015 the Council of the respondent, acting in terms of clause 6 of
the Regulations, suspended the applicant on full pay
because it was
alleged that he committed acts of misconduct and that some or all of
the circumstances falling under clauses 6(a)
and (b) of the
Regulations were present.
[5]
[5]
Following several charges of misconduct that were subsequently
preferred against the applicant,
and on 12 December 2016 after a
disciplinary hearing, the presiding officer found the applicant
guilty on six charges. This was
followed by a sanction of summary
dismissal once aggravating and mitigating circumstances were
considered.
[6]
On 13
December 2016 the respondent’s then Acting City Manager
[6]
Ms Zitumane furnished the applicant with a letter informing him of
the termination of his services following the sanction which
took
immediate effect on 12 December 2016. On the respondent’s
version the sanction was
imposed
by the presiding officer and was implemented (or given effect) by the
Acting City Manager. The applicant’s version is that
the
sanction was
recommended
by the presiding officer and it was solely the respondent’s
Council that could dismiss him by terminating his contract of
employment. Arising from these divergent views, the issues for
determination in these proceedings concern (i) the authority to
dismiss the applicant, and (ii) the competence of the Acting City
Manager to have implemented the sanction.
[7]
The
applicant contends that the action of the Acting City Manager
constituted a breach of clause 15.2 of his fixed term employment
contract. His case is that it is only the respondent’s Council
which has the power to dismiss him. This application relates
only to
the latter challenge and is not directed at the findings and sanction
imposed by the presiding officer.
[7]
These issues are pending before the South African Local Government
Bargaining Council (“the Bargaining Council”). The
applicant’s claim for breach of his contract of employment is
set out in his Notice of Motion and in a cause of action borne
by
factual averments in his founding papers.
[8]
[8]
Although
this Court has been approached for a raft of declaratory orders, the
main relief which the applicant seeks is “
A
declaratory to the effect that the termination of the Applicant’s
fixed term contract of employment by the acting City Manager
on 13
December 2016 was unlawful and in breach thereof and is accordingly
reviewed and set aside”
.
In addition, he seeks an order that he be reinstated in his
employment position as Executive Director: Corporate Services with
back-pay on the same terms and conditions stipulated in his contract
(this relief is an amalgamation of the orders sought in paragraphs
(iii) and (iv) of the Notice of Motion
[9]
.
The applicant’s entitlement, if any, to the remaining relief is
dealt with later in this judgment).
THE
AUTHORITY TO DISMISS
[9]
The
legislative framework for the appointment by the Municipal Council of
a senior manager such as the applicant is set out in section
56 of
the Systems Act and the regulatory framework under which senior
managers are disciplined is charted in the Regulations. Before
dealing with the latter and its relevance to clause 15.2 of the
employment contract, it is perhaps useful to identify the principle
of interpretation applicable to the clauses mentioned hereunder. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[10]
the Supreme Court of Appeal expressed the current state of the law
with regard to the interpretation of written instruments as
follows:
“
Interpretation
is the process of
attributing meaning to the words used in
a document
be it legislation, some other statutory
instrument,
or contract, having regard to the context
provided by reading the particular provision or provisions in the
light of the document as a whole and the circumstances attendant
upon
its coming into existence.
Whatever the language of the
document, consideration must be given to the language used in the
light of the ordinary rules of grammar
and syntax; the context in
which the provision appears
; the apparent purpose to which
it is directed and the material known to those responsible for its
production. Where more than one
meaning is possible each possibility
must be weighed in the light of all these factors.
The
process is objective, not subjective
. A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation;
in a contractual context it is to make a
contract for the parties other than the one that they in fact made.
The ‘inevitable
point of departure is the language of the
provision itself’
, read in the context of having
regard to the purpose of the provision in the background to the
preparation and production of the
document.” (my underlining)
[10]
The relevant provisions of the Regulations state that:
“
Policy
4. (1) If a senior
manager is alleged to have committed misconduct, the municipal
council must institute disciplinary proceedings
in accordance with
this Disciplinary Code.
…
Disciplinary
Procedures
5. (1) Any allegation of
misconduct against a senior manager must be brought to the attention
of the municipal council.
…
Conducting
disciplinary hearing
10. (2) The hearing must
be conducted by the presiding officer who may determine the
procedures to be followed, …
…
Sanctions
12. (1) The presiding
officer may impose any, or a combination of the following sanctions,
with or without conditions:
…
(f) dismissal.
…
12. (2) The presiding
officer must –
(a) impose a sanction
within ten [10] days of the completion of the hearing;
(b) advise the municipal
council and the senior manager in writing of the finding and
sanction;
(c) …;
(d) …;
(e) submit a record of
the proceedings to the municipal council within ten [10] days after
imposing the sanction.
12. (3) “The
municipality must –
(a) implement the
sanction imposed by the presiding officer;”
[11]
When
applying the interpretative standard in the
Endumeni
case it becomes plain that the authority to impose a dismissal
sanction against a senior manager resides with the presiding officer
to the exclusion of the municipal council or even the city manager
(acting or otherwise). The power of dismissal which is vested
in the
presiding officer was also confirmed in the matter of
Thozama
Jako-Wutu v Ntabankulu Local Municipality and Others.
[11]
The applicant in that
matter was a senior manager formerly in the employ of the respondent
municipality and was dismissed after
the respondent adopted the
dismissal recommendation by the presiding officer of her disciplinary
proceedings. Although the court
found that the disciplinary
proceedings against the applicant had not been validly initiated for
non-compliance with the Regulations,
it remarked as follows regarding
the fact that the presiding officer had only recommended a sanction
instead of imposing it:
“
In any event,
it is not the council that is empowered in terms of Regulation 12 to
impose a sanction. Thus even if the enquiry had
not been invalidly
initiated, it was the chairperson of the enquiry who was empowered to
impose the sanction, which he only recommended.”
[12]
In
addition, the Regulations draw a clear distinction between instances
where the respective involvement of the “municipality”
or
the “municipal council” is required. The Regulations
evince further examples of such instances where specifically
the
involvement of the municipal council is required, such as with the
appointment of an independent investigator to investigate
allegations
of misconduct against a senior manager,
[12]
the duty to consider representations by a senior manager regarding
his or her intended suspension,
[13]
the suspension of a senior manager,
[14]
the duty to inform the senior manager in writing of the reasons for
his or her suspension,
[15]
and
the institution of disciplinary proceedings against such manager upon
receipt of a report from an investigator.
[16]
[13]
In the
context of the Regulations the differentiation in functions assigned
to the municipal council and to the municipality is
central to the
conception that these entities may exercise no power and perform no
function beyond that conferred upon them by
law. Equally relevant,
but with specific reference to a municipal manager, is the document
known as “Nelson Mandela Bay Metropolitan
Municipality: Systems
of Delegations of Powers
[17]
(“the delegations”) discussed below.
THE
IMPLEMENTATION OF THE SANCTION
[14]
In contrast to the above, Regulation clause 12(3)(a) which deals with
the implementation of the sanction
imposed by the presiding officer,
does not refer to the “municipal council” but only to the
“municipality”.
[15]
The Regulations do not define these terms. Referring to section
151(2) of the Constitution read with section
2 of the Systems Act,
the applicant adopts the stance that the reference to “municipality”
in clause 12(3)(a) is anxiomatically
a reference to “municipal
council”. Section 151(2) of the Constitution states that the
executive and legislative authority
of a municipality is vested in
its municipal council. Section 2 of the Systems Act defines (in part)
a municipality as an organ
of state within the local sphere of
government exercising executive and legislative authority. The
applicant’s deduction
is that in a municipal environment there
is no differentiation between a municipal council and a municipality;
hence the same reasoning
applies to the Regulations. He maintains
therefore that the principle applicable to his appointment and
dismissal is the same (i.e.
he is appointed by the municipal council
and therefore must be dismissed by it). Taken further, the argument
is that the disciplinary
process did not end with the sanction of the
presiding officer notwithstanding the latter’s competence to
have imposed it.
The applicant’s complaint is that clauses
12(2)(b) and (e) of the Regulations were not complied with because
the presiding
officer did not advise the municipal council in writing
of the finding and sanction, nor was a record of the disciplinary
proceedings
submitted to the council. The effect of such
non-compliance, on the applicant’s argument, is that the
municipal council
qua
employer that appointed him in terms of
section 56 of the Systems Act, was precluded from implementing the
presiding officer’s
sanction for the purpose of terminating
applicant’s services in accordance with clause 15.2 of the
employment contract. In
short, the applicable Regulations were not
complied with and the purported termination by the Acting City
Manager constituted a
breach of his employment contract.
[16]
I am unable
to agree with the applicant’s reasoning that within the context
of the Regulations there is no differentiation
between a municipal
council and a municipality. The Systems Act (in terms of which the
Regulations are promulgated) incorporates
two distinct definitions;
one for a municipality and another for a municipal council.
[18]
[17]
The Act defines a municipal council with reference to section 157(1)
of the Constitution (the section deals
with the “composition
and election” of the members of a municipal council). Nowhere
in the Act is any reference made
to section 151(2) of the
Constitution which section declares that a municipal council is
vested with legislative and executive
authority. It follows that the
definition of a municipal council in the Systems Act, where reference
is pertinently made to section
157(1) of the Constitution, is
narrowly circumscribed.
[18]
On the other hand, the Act defines a municipality as “an organ
of state” consisting
inter alia
of political and
administrative structures. Self-evidently, this definition is far
broader than that ascribed to a municipal council.
[19]
Plainly, the definitions in the Systems Act intended that conflation
between a municipal council and a municipality
be avoided. In my view
the same holds good for the Regulations. The applicant’s
anxiomatic reasoning side-steps the distinguishing
features of these
concepts and is at odds with the approach to interpretation
articulated in the
Ndumeni
case.
[20]
To sum up, the disciplinary process ended once the sanction of
summary dismissal was imposed by the presiding
officer; no further
involvement by the municipal council was required, whether for
terminating the applicant’s contract of
employment and
dismissing him as an employee, or for implementing the sanction.
[21]
I turn to deal with the applicant’s argument regarding
non-compliance with Regulation clauses 12(2)(b)
and (e). The factual
backdrop is that on 31 January 2017, and at a special meeting of the
Council of the respondent, an item styled
“Report by City
Manager 26 January 2017 (Special)” was presented and noted. The
report incorporated a summary of the
outcome of the disciplinary
proceedings and made reference to the findings on each charge and the
sanction ultimately imposed against
the applicant.
[22]
The applicant’s complaints are that the report was factually
incorrect and misleading (an aspect I
need not be troubled with in
this judgment since clause 12(2)(b) merely requires that the
municipal council be advised of the finding
and sanction) and that it
was tabled in lieu of the documentation required by the
aforementioned regulation clauses, particularly
sub-clause (e) which
makes reference to a record of the proceedings.
[23]
A starting point is that the word “record” is not defined
in the Regulations. Apart from asserting
that the record was not
placed before the respondent’s Council, the applicant makes no
attempt in clarifying what he believes
constituted the record, nor
does he demonstrate how its alleged absence prejudiced him or that
the summary tabled in the report
was inaccurate or misleading in
material respects. In raising the issue, the applicant seems to
suggest that respondent’s
Council had a discretion whether or
not to implement the sanction to terminate his contract of
employment. Counsel for the respondent,
Mr Ford SC assisted by Ms
Gagiano, submitted correctly in my view, that the regulation does not
make any provision for the respondent’s
Council to second-guess
the presiding officer or to overrule, vary or otherwise interfere
with his sanction since that would be
contrary to the prescript that
the municipality must implement the sanction. The alleged failure to
submit a record did not in
any manner whatsoever impact on the
presiding officer’s sanction nor on the manner in which it was
implemented by the Acting
City Manager on 13 December 2016.
[24]
At the
abovementioned special meeting of the respondent’s Council on
31 January 2017 the report on the outcome of the disciplinary
proceedings was noted including that the “ …
City
Manager had implemented the sanction of dismissal imposed by the
Presiding Officer on behalf of the Municipality and issued
a letter
of dismissal to Mr Ndoyana on 13 December 2016”.
[19]
Significantly,
the Council recognised that the responsibility for implementing the
sanction rested entirely with the municipality.
Any indication that
the Council thought otherwise is not borne from the papers before me
nor could the applicant establish this.
[25]
Section 59
of the Systems Act obliges a municipal council to develop a system of
delegation that will
inter
alia
maximise administrative and operational efficiency. The Act
recognises a municipal manager (otherwise also known as a city
manager)
as head of the administration of a municipality.
[20]
The respondent’s approved system of delegations (entitled
“Nelson Mandela Bay Metropolitan Municipality: Systems of
Delegations of Powers
[21]
)
confers
inter
alia
upon the city manager the power “
to
dismiss employees
”.
[22]
The applicant’s interpretation of the specified delegation is
that it is not applicable to the dismissal of senior managers
(such
as himself) appointed in terms of section 56 of the Systems Act. The
contention by Mr Ford is that the delegated power “
to
dismiss employees
”
ensures the effective implementation of the sanction imposed by the
presiding officer. I am attracted to this line of reasoning;
it is
pragmatic because it accords with the prescript of maximising
administrative and operational efficiency. On the contrary,
the
applicant’s interpretation is based on a misunderstanding of
where or in whom the power to implement the sanction resided
and is
informed by a reading of abstract textual material which seeks to
exclude the applicable delegation from applying to senior
managers.
His interpretation thereof is improbable and speculative in the
extreme.
[26]
Regulation
12(3) read with the delegations unmistakably placed the
responsibility for implementing the presiding officer’s
dismissal sanction with the respondent municipality as opposed to its
Council. Once the dismissal sanction had been imposed, all
that was
left for the respondent to do was to implement the sanction which
occurred when the Acting Municipal Manager Ms Zitumane,
in the letter
dated 12 December 2016
[23]
informed the applicant of the sanction and that he has “
the
right to declare a dispute at the South African Local Government
Bargaining Council
.”
[27]
This brings
me to a series of pertinent remarks in the respondent’s
answering affidavit. The applicant recognised the
power of the
presiding officer to make the findings which he did on each of the
charges for which the applicant was convicted and
to have imposed the
summary dismissal sanction. On 15 December 2016 the applicant had
recourse to the Bargaining Council with a
complaint of unfair
dismissal. This occurred well before the special meeting of the
respondent’s Council on 31 January 2017
at which meeting the
Report by the City Manager on the outcome of the disciplinary
proceedings was noted. When the attempt at conciliation
before the
Bargaining Council proved unsuccessful the applicant referred the
matter for arbitration in terms of the Labour Relations
Act.
[24]
This referral also occurred prior to 31 January 2017. This sequence
of events has led the deponent to the opposing affidavit to
opine
“
that
the point taken by the applicant viz., that the power to dismiss
resorts only in the Council, was an afterthought as the applicant
at
the time clearly recognised the finality of the findings and his
dismissal unless overturned firstly through conciliation and
then,
failing that, arbitration before the Bargaining Council.”
There
is certainly no indication in the founding affidavit nor in reply why
the applicant did not wait for the Council of the respondent
to
dismiss him (if, on his version that is what should have been done)
and only then have recourse to the Bargaining Council. Considering
that none of the arguments put forward by the applicant has found
favour with this Court, the assertion of his strategy being an
afterthought is not anything farfetched.
THE
COMPETENCE OR OTHERWISE OF THE REMAINING RELIEF CLAIMED BY THE
APPLICANT
[28]
In the light of the aforegoing sentiments the applicant is not
entitled to the relief in paragraphs (i);
(iii) and (iv) of his
Notice of Motion. It is however evident from his heads of argument
that he purports to pursue with the remaining
relief in prayers (ii);
(v); (vi) and (vii), namely:
“
(i)
… ;
(ii)
A declaratory to the effect that a municipal council resolution of 28
February 2019
be declared null and void and be set aside;
(iii)
… ;
(iv)
… ;
(v)
A declaratory to the effect that all councillors and officials
responsible for this
fruitless and wasteful expenditure incurred as a
result of the Applicant’s re-instatement be held individually
liable for
it in accordance with the Municipal Finance Management
Act, 2003 and Public Audit Amendment Act 2018;
(vi)
A declaratory to the effect that the applicant be compensated for all
the legal costs incurred
throughout the duration of this dispute; and
(vii)
Any other appropriate relief.”
[29]
It is a
well-known principle that a court will only grant relief that is
capable of enforcement, and where relief cannot be enforced,
that is
good reason for refusing it.
[25]
The relief in prayer (ii) is plainly incompetent. Nowhere in his
founding affidavit nor in his heads of argument does the applicant
identify the impugned resolution nor is anything said about the
purport of the Council meeting that would throw light on the nature
of the resolution. As for prayer (v) it is extraordinary that such
relief is sought without citing or even identifying the persons
against whom the applicant wishes the order to be made. In respect of
prayer (vi), the applicant has not formulated the extent
of such
costs nor has he proffered an explanation relevant to how and when
such costs were incurred and on what scale. Lastly,
as for prayer
(vii) neither in his papers nor during argument did the applicant
make any attempt by way of indication or address
on what factual
considerations may properly support such relief. Mr Ford correctly
concluded that the relief sought in these prayers
is fanciful.
COSTS
[30]
On 30 July
2019 the applicant delivered a notice of motion (dated 29 July 2019)
together with an affidavit and annexures. This application
(“the
second application”) comprised of some 59 pages and raised a
series of issues
in
limine
,
in which the applicant sought the setting aside of resolutions of the
respondent’s Council taken on 27 September 2018, 4
December
2018 and 4 April 2019 and further relief declaring unlawful the
respondent’s opposition to these proceedings (“the
main
application”). To a certain extent the notice of motion mirrors
a previous one delivered by the applicant on 30 April
2019 also with
an affidavit comprising of 14 pages (“the first application”).
Both notices of motion and the applications
they purported to have
launched were not of an interlocutory nature. They appear to be
substantive applications in their own right
since the essence of the
relief sought was in the nature of reviews unrelated to the main
application.
[26]
[31]
In response to both applications the respondent delivered notices
under rule 30. Following delivery
of the respondent’s
rule 30 notice in response to the first application, the applicant
delivered a notice of removal dated
17 May 2019 which read: “…
the point in limine raised by the Applicant on 30 April 2019 is
hereby removed and an application to re-introduce it will be
filed
with the Registrar … in due course to allow the Respondent
sufficient time to prepare and respond to it.”
Simultaneously with the delivery of the notice of removal was a
request for particulars in which were requested
inter alia
the
agenda and minutes of the respondent’s council meetings of 27
September 2018, 4 December 2018 and 4 April 2019. The request
for
such documentation leaves one wondering whether proper consideration
and forethought was given to the preparation of the first
application.
[32]
At the hearing of this, the main application on 15 August 2019, the
applicant withdrew the second application
when confronted by the
respondent’s insistence that it wished to pursue with a rule 30
application to set it aside. It seems
to me that the whole process
regarding the launching of the first and second applications was
infected with an air of impropriety.
I think Mr Ford was correct in
his submission that this amounted to an abuse of the process of
court. He contended for a punitive
costs order against the applicant.
In reply, the applicant laconically stated that this court should
“please do something
around that”. I am of the view that
a punitive costs order is not warranted but that the usual order as
to costs should follow.
[33]
Relevant to the founding affidavit in the main application, apart
from incorporating hearsay matter, it is
manifest of a sheer lack of
restraint and civility by the applicant’s choice of indignant
language where he refers to officialdom
within the respondent and to
those from whom the respondent has procured legal advice on certain
matters. It is not surprising
that the respondent was induced to have
such material struck out. I do not intend burdening this judgment
with a repetition of
the material with which the respondent has taken
issue since I was urged by Mr Ford to disregard the offending
material to enable
the main application to proceed. The applicant
chose not to address me on the material raised in the application to
strike out
and acceded to the suggestion by Mr Ford. Having satisfied
myself that the material raised by the respondent would be
prejudicial,
I have accordingly disabused my mind from same in the
preparation of this judgment. The respondent is entitled to its costs
in
respect of the application to strike out.
[34]
The respondent employed two counsel since the inception of these
proceedings. The reasons therefor and the
circumstances are set out
in the respondent’s opposing affidavit and it is unnecessary to
traverse the explanation proffered
by the deponent in its entirety.
The matter has a history which dates back to 2014 commencing with an
investigation of the applicant’s
conduct followed by his
suspension in July 2015. The applicant in his papers, which comprised
of some 112 pages and 19 annexures,
relied heavily upon various
statutes, regulations and his contract of employment, all of which
required careful consideration and
analysis. The respondent’s
legal representatives were required to consider the applicant’s
papers, conduct research,
source additional documentation and prepare
the answering papers of which the answering affidavit without
annexures exceeded some
40 pages. Moreover, at various intervals
consideration had to be given to the “interlocutory”
applications referred
to above and the drafting of various notices
under rule 30. The costs of two or more counsel will be allowed only
if a court specifically
orders this to be the case failing which the
costs of only one advocate is awarded. Despite the abovementioned
material contained
in the opposing affidavit, I was not specifically
addressed on the issue relating to the costs of two counsel. However,
I have
dealt with what I believe are the relevant considerations in
giving effect to the basic principle that a court may in its
discretion
direct that costs follow the event in the sense that the
successful party is entitled to its costs.
[35]
In the result I make the following order:
(i)
The application is dismissed with costs, such costs shall include
those attendant on the withdrawal of the applicant’s
application launched under Notice of Motion dated 29 July 2019 and
shall further include the costs attendant on the respondent’s
application to strike out.
(ii)
The costs in paragraph (i) shall be limited to the employment of
Senior
Counsel only.
____________________________
S.
RUGUNANAN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Applicant:
In Person
Tel: 063 646 5595
ndoyanamz@gmail.com
For
the Respondent:
Adv. E. A. S. Ford SC with Adv L. Gagiano
Instructed by Rushmere
Noach Inc.
Respondent’s
Attorneys
Port Elizabeth (Ref : Mr
S. Gough)
Tel: 041 394 6700
Email:
shelby@rushmere.co.za
[1]
clause 1
[2]
In actual fact the term was for 5 years and would have terminated on
31 December 2018
[3]
Act 32 of 2000, as amended
[4]
See clause 2(i)(a)(ii) of the regulations published in GN 344 in GG
34213 of 21 April 2011 in terms of section 120 of the Local
Government: Municipal Systems Act
supra
[5]
Clause 6 is headed “
Precautionary
Suspension
”
and contains the following applicable sub-clauses: “(1) the
municipal Council may suspend a senior manager on full
pay if it is
alleged that the senior manager has committed an act of misconduct,
where the municipal Council has reason to believe
that –
(a)
the presence of the senior manager at the workplace may –
(i)
jeopardise any investigation into the alleged misconduct;
(ii)
endanger the well-being or safety of any person or municipal
property; or
(iii)
be detrimental to stability in the municipality; or
(b)
the senior manager may –
(i)
interfere with potential witnesses; or
(ii)
commit further acts of misconduct."
[6]
Also referred to as Acting Municipal Manager
[7]
Founding affidavit, page 9, paragraph 13
[8]
See
Dennis
v Kouga Municipality
(644/2011) [2011] ZAECPEHC 30 September 2011
[9]
The relief claimed in the Notice of Motion encompasses:
“
(i)
A declaratory to the effect that the termination of the applicant's
fixed term contract of employment by the Acting City Manager
on 13
December 2016 was unlawful and in breach thereof and is accordingly
reviewed and set aside; (ii) A declaratory to the effect
that a
Municipal Council resolution of 28 February 2019 be declared null
and void and be set aside; (iii) A declaratory to the
effect that
the applicant be re-instated in his original position of Executive
Director: Corporate Services as of 13 December
2016 with full
retrospective effect; (iv) A declaratory to the effect that the
applicant be paid retrospectively his monthly
salary since December
2016 including the costs of living adjustments; (v) A declaratory to
the effect that all councillors and
officials responsible for this
fruitless and wasteful expenditure incurred as a result of the
applicant's re-instatement be held
individually liable for it in
accordance with the Municipal Finance Management Act, 2003 and
Public Audit Amendment Act, 2018;
(vi) A declaratory to the effect
that the applicant be compensated for all the legal costs incurred
throughout the duration of
this dispute; and (vii) Any other
appropriate relief."
[10]
2012 (4) SA 593
(SCA) at paragraph [18]
[11]
(P332/14) [2016] ZALCPE 1 (16 February 2016) at paragraph [27]
[12]
Clause 5(3)
[13]
Clause 6(3)
[14]
Clause 6(1)
[15]
Clause 6(5)
[16]
Clause 5(6)
[17]
See Bundle “A”
[18]
Section 1
[19]
Answering affidavit, page 13 (originally numbered)
[20]
Section 55
[21]
See Bundle “A”
[22]
Bundle “A” - Delegations, clause 6.1.6(b)
[23]
Founding affidavit, Annexure MMN 4
[24]
i.e. section 136 of Act No. 66 of 1995 as amended
[25]
Mansell v Mansell
1953 (3) SA 716
NPD at 721 E; and Weiner N.O. v
Broekhuizen
2001 (2) SA 716
(CPD) at 722 J
[26]
And purported to raise collateral challenges