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[2022] ZAECQBHC 7
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Qaba v Johnson and Another (981/2022) [2022] ZAECQBHC 7 (12 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, GQEBERHA)
Reportable
Case
No: 981/2022
In
the matter between:
ANELE
QABA
Applicant
AND
EUGENE JOHNSON
First
Respondent
THE SPEAKER: THE
MUNICIPAL COUNCIL OF THE
NELSON MANDELA BAY
METROPOLITAN MUNICIPALITY Second
Respondent
REASONS FOR JUDGMENT
GOOSEN
J:
[1]
The application was brought on an urgent basis to set aside the
purported termination
of the applicant’s employment with the
Nelson Mandela Metropolitan Municipality. The applicant is Mr Anele
Qaba who is employed
as a senior manager in the position of Executive
Director of Economic Affairs. He is presently occupying the position
of Acting
City Manager in terms of a resolution of the municipal
council dated 23 March 2022.
[2]
The first respondent is Mrs Eugene Johnson who is the Executive Mayor
of the Nelson
Mandela Bay Municipality. The second respondent is the
Speaker of the Council. Only the first respondent opposed the relief
sought.
An affidavit, which, in essence, confined itself to the
challenge to the urgency with which the application was enrolled, was
deposed
to by the first respondent’s attorney. After hearing
argument, I made the following order:
1.
The purported termination of the employment services of Mr Anele Qaba
on 6 April 2022 by
the first respondent, as executive Mayor, is
declared unlawful and is set aside as being of no force and effect.
2.
The first respondent, as Executive Mayor, is ordered to pay the costs
of the application
on a scale as between attorney and client.
[3]
I indicated that I would provide reasons for making the order in due
course. What
follows are those reasons.
[4]
The events giving rise to the purported termination of Mr Qaba’s
employment,
and this application, occurred against this backdrop of
the ongoing conflict within the Municipal Council regarding the
appointment
of a City Manager. I set out the nature of that conflict
and its consequences in my judgment in Case No. 862/2022 delivered on
5 April 2022.
[1]
It suffices,
for present purposes, to record that Dr Nqwazi was appointed to the
position of City Manager at a council meeting
on 16 March 2022. The
lawfulness of that appointment is disputed on the basis that the vote
was taken at a time when there was
no longer a quorum of councillors
present. On 23 March 2022, at a further council meeting convened as a
continuation of the first
meeting, resolutions were adopted
purporting to rescind certain steps taken by the Executive Mayor
pursuant to the resolution of
16 March 2022. The council also took
the decision to appoint Mr Qaba as Acting Municipal Manager and
authorized the suspension
of Dr Nqwazi.
[5]
Since 23 March both Dr Nqwazi and Mr Qaba have asserted the right to
exercise the
authority and powers of a City Manager. This gave rise
to the application in Case No. 862/2022. For reasons fully set out in
my
judgment in that matter, the application was dismissed. I did not,
however, make a definitive finding as to the lawfulness of the
appointment of Dr Nqwazi or Mr Qaba. I indicated that it was within
the power of the municipal council to resolve the impasse and
expressed the hope that it would do so expeditiously.
[6]
It appears from the present case that the municipal council has not
yet acted to address
the issue. Instead, on 6 April 2022, the first
respondent sent a letter to Mr Qaba, which reads:
“
TERMINATION OF
SERVICE
This serves to inform you
that your services as an employee is hereby terminated with immediate
effect:
Note you are to:
a)
Vacate Municipal Offices immediately;
b)
Return all Municipal property/tools of trade
immediately.”
[7]
The first respondent also sent a letter to the head of the Safety and
Security Directorate
in the Municipality. It read as follows:
“
EVICTION:
MUNICIPAL BUILDINGS
I enclose herewith a copy
of my letter to Mr Qaba, this serves to inform Safety and Security to
evict Mr Qaba from municipal buildings.”
[8]
In a later letter, also dated 6 April 2022, the first respondent
furnished reasons
to Mr Qaba for her purported termination of his
services. It is reproduced below:
“
1.
The abovementioned matter refers. Pursuant to my letter to you,
terminating your services, find below,
the reasons therefor.
2.
Notwithstanding the fact that I met with you, you have failed to
report to me, meet with
me or verify any correspondence that you send
out to all municipal employees pertaining to sensitive municipal
issues and in so
doing, create confusion within the municipality and
within the public domain.
3.
As a senior manager and a person who has acted as a municipal manager
in the past, you know
or ought to know when a person ceases to be a
councillor, since a municipal manager is trusted with the
notification of such declaration.
4.
On 23 March 2022, you were verbally abusive and grossly insubordinate
toward me and the Deputy
Executive Mayor, when we approached you to
discuss the court order obtained on the same day, by the
municipality.
5.
Despite the fact that you allege that you are the acting city
manager, your immediate superior
would be myself. Notwithstanding
this, you fail to report to me and in so doing operate on the basis
that you only answer to yourself
and thereby you have failed in your
statutory duty, in terms of section 55 of the Systems Act, to advise
me of pertinent issues,
more especially the draft annual budget and
its process.
6.
On 31 March 2022 and at the Gqeberha High Court, you threatened 2
employees from the legal
directorate of the municipality, which
threats were included in the municipality’s court papers and
which threats, you did
not defend, thereby accepting same.
7.
On 6 April 2022, you sent a message to all staff, on Groupwise,
whereby you once again threatened
employees from the legal
directorate. Your communication in the said message was further,
factually incorrect in many respects.
8.
All of the above is deemed to be a repudiation of your employment
contract with the municipality,
which repudiation, I have accepted in
terms of my delegated authority. Having accepted such repudiation,
your services with the
municipality is terminated.
9.
Trusting you will find this to be in order.”
[9]
Not surprisingly, Mr Qaba did not find the termination of his
employment services
‘in order’ and instead commenced this
application on 7 April 2022. The papers were served on the first
respondent at
15h30 on 7 April 2022, following a directive as to
enrolment obtained pursuant to Rule 12 of the Eastern Cape Rules of
Court.
[10]
The first respondent filed a notice of opposition during the morning
of 8 April and an answering
affidavit, deposed to by her attorney,
was filed at 11h00 on 8 April 2022. The application was heard at
12h00. At the hearing the
applicant was represented by Mr Beyleveld
SC and the first respondent by Mr Ford SC.
[11]
The applicant’s case is a simple and straightforward one. It is
that the purported termination
of his employment is a clear breach of
the principle of legality. He states that he is a duly appointed
employee of the Municipality
having been appointed in the capacity as
a senior manager in the position of Executive Director: Economic
Development, Tourism
and Agriculture. He was appointed in terms of s
56 of the
Local
Government: Municipal Systems Act
[2]
(the
Systems
Act
).
On 23 March 2022, he was appointed by resolution of Council to act as
the City Manager. The first respondent has no authority
to summarily
dismiss a duly appointed employee, employed in terms of s 56 of the
Systems
Act
.
Nor does she have the authority to overturn a resolution of the
council appointing him as Acting City Manager.
[12]
The applicant contends that the purported termination of his
employment and attempt to evict
him from municipal buildings is a
flagrant illegality, which cannot be countenanced. It exacerbates the
confusion surrounding the
position of the City Manager; is directed
to prevent him from acting in that capacity; and will seriously
undermine the administration
of the municipality. In the light of the
breach of the principle of legality, the court should urgently
intervene to set aside
the purported termination.
[13]
The first respondent’s answering affidavit does not address the
merits of the applicant’s
case. It is confined to challenging
the urgency with which the application was commenced. Mr Ford, who
appeared for the first respondent
confirmed that he would deal solely
with urgency, as he was entitled to do. The first respondent was not
seeking additional time
to enable her to deal with the merits.
[14]
The affidavit of attorney Ms Koorsse, largely sets out matters of
argument relating to urgency.
It does, however, address an aspect of
the conflict in relation to the position of the City Manager. It is
asserted that the council
resolution of 16 March 2022, which
appointed Dr Nqwazi, as City Manager must, as a matter of law stand
until set aside by a court
of law. The actions taken by the first
respondent, by signing the employment contract of Dr Nqwazi on 17
March 2022 and informing
the Member of the Executive Council (MEC) of
the appointment are actions properly taken by her pursuant to the
council resolution
of 16 March. The municipal council resolution of
23 March did not, nor could it, set aside the resolution of 16 March.
Accordingly,
Mr Qaba could not be appointed to the position of Acting
City Manager.
[15]
The affidavit, and indeed argument of Mr Ford, goes on to assert that
Mr Qaba bases the need
for urgent intervention upon the effect that
his termination has upon his function as Acting City Manager. Since
he cannot properly
occupy that position, his claim for urgency is
unfounded. It was further submitted that he makes no case for being
unable to obtain
redress in due course, so far as his employment is
concerned, and therefore no case for urgent enrolment is made out.
[16]
There is, however, a fundamental difficulty with the argument. It
proceeds from the premise that
the resolution of 16 March and what
followed must be acted upon notwithstanding what occurred on 23
March. Yet, what occurred on
23 March also occurred at a council
meeting. Resolutions were taken and in the case of the position of
City Manager, two such resolutions
directly bear upon the capacity of
Mr Qaba to act as Municipal Manager. The two resolutions are set out
in the judgment in case
no. 862/2022
[3]
.
One of those resolutions was to suspend Dr Nqwazi and the other was
to appoint Mr Qaba as acting City Manager.
[17]
These resolutions can equally not be wished away as if they were
never taken. They exist. It
is precisely this state of affairs, which
lies at the heart of the conflict in the council. As indicated in the
judgment in case
no. 862/2022, one set of councillors took one
decision on 16 March and another set took diametrically opposing
decisions on 23
March. No resolution for this legal conflict could be
provided in case no. 862/2022 because the issue was not reached. It
is also
not reached in this matter. Until it is reached by way of
competent legal proceedings brought by the properly cited parties, it
remains a matter to be resolved by the municipal council. If that
means a court review process initiated by the council itself,
then so
be it.
[18]
I am mindful that Mr Ford sought to rely upon the 16 March
resolutions to indicate that Mr Qaba
has not made out a case for
urgency. However, Mr Qaba asserts urgency also on the basis that the
conduct of the first respondent
is egregious. She has acted without
any authority to terminate his employment. She has done so without
any regard to his statutory
and contractual rights as an employee.
Such disregard of the principle of legality is inherently
prejudicial.
[19]
Mr Beyleveld argued that a court will not, in a case where conduct is
manifestly not lawful,
countenance such illegality by refusing for
procedural reasons, to hear the matter.
[20]
In my view, the applicant’s assertion of the need to deal with
the case urgently is inextricably
bound up with the lawfulness of the
first respondent’s actions. The first respondent chose not to
deal with the substantive
allegations of illegality. I indicated a
preparedness to afford the first respondent more time within which to
do so. She persisted,
however, with her procedural challenge based
upon urgency.
[21]
The applicant’s case is not complex. It asserts that the
purported termination of his employment
is unlawful. He points to s
56 of the
Systems Act
. He asserts that certain procedural
steps by which a s 56 employee may be terminated were not taken. To
answer these allegations
would not, in my view, be unduly complicated
or time consuming. The first respondent either has the authority to
act as she did
without following any of the well-recognized
procedural steps or she did not. If she was properly vested with
delegated authority
to act on behalf of the council, no doubt the
delegation would be readily available as required by s 59 of the
Systems Act
. By choosing not to join issue, it must be
inferred that the first respondent is unable to do so. This has a
bearing upon whether
the matter is to be regarded as urgent.
[22]
I did not understand Mr Ford to press the point that the enrolment
would severely prejudice the
first respondent in meeting the case.
Such prejudice would usually be constituted by the entrance of a
sustainable defence, which
cannot be properly presented because of
the abridgment of notice periods. Instead, the contention was that
the applicant had not
fully or properly justified the abridgment of
the time periods.
[23]
I do not agree. No doubt more might have been said. But enough was
indicated to warrant the hearing
on the time frames given. It follows
that the opposition based on a lack of urgency could not be
sustained.
[24]
I turn briefly to the merits. The letter of 6 April 2022 summarily
terminated Mr Qaba’s
employment services. It was not preceded
by any process which may lawfully entitle an employer to terminate
the services of an
employee. The termination occurred without
affording him any of the normal legal rights and protection to which
he would be entitled
as an employee.
[25]
Section 56(1)(a) of the
Systems
Act
stipulates
that a municipal council must appoint a manager, such as the
applicant, who is directly accountable to the municipal
manager. The
municipal council is required to consult with the municipal
manager.
[4]
The Disciplinary
Regulations for Senior Managers
[5]
seek to regulate all aspects relating to the disciplinary process
related to senior managers i.e. those appointed in terms of s
56 of
the
Systems
Act
.
[6]
Their purpose is,
inter
alia
,
to promote mutual respect between senior managers and council
[7]
,
and to prevent arbitrary or discriminatory actions.
[8]
[26]
In terms of Regulation 5(1) any allegation of misconduct against a
senior manager must be brought
to the attention of the municipal
council. The allegation of misconduct must be tabled by the mayor or
municipal manager (as the
case may be) before the council.
[9]
Once such allegation is tabled the council must act. If satisfied
that there is reasonable cause to believe that an act of misconduct
has been committed, it must appoint an independent investigator.
[10]
If not satisfied the council must dismiss the allegation of
misconduct.
[11]
The report of
the investigator must be tabled before the municipal council
[12]
,
and it is the council that decides, by way of a resolution, to
institute disciplinary proceedings against the senior manager.
[13]
The enquiry proceeds before an independent and external
investigator.
[14]
[27]
In the event that the circumstances warrant a precautionary
suspension, it is the council which
is entitled to impose such
suspension.
[15]
Upon
completion of the disciplinary enquiry, the appointed presiding
officer may impose sanctions as are provided in Regulation
12. This
includes dismissal.
[16]
In
terms of Regulation 12(3) the municipality must implement the
sanction. These Regulations, as read in the context of s 56 of
the
Systems
Act
indicate
that the authority to discipline and dismiss a senior manager is
vested in the municipal council. Such authority is itself
regulated
and is subject to due process.
[28]
In
Mbatha
v Ehlanzeni District Municipality and Others
[17]
the question arose whether a municipal council may delegate to an
executive mayor the power to decide to discipline a municipal
manager. The court, after examining sections 55 to 60 of the
Systems
Act
and
s 56 of the
Structures
Act
[18]
,
came to the conclusion
[19]
that the power resides exclusively with the council and that it may
not be delegated to an executive mayor.
[29]
This judgment relates to the position of a municipal manager
appointed in terms of section 54A
of the
Systems Act
. However,
the provisions of s 54A mirror those in s 56. The basis of the
court’s judgment was that only appropriate powers
may be
delegated to an executive mayor. Such considerations would apply
equally in relation to the exercise of disciplinary powers
by an
executive mayor over senior managers appointed by a municipal
council.
[30]
Even if it might be open to a municipal council to delegate to an
executive mayor the authority
to decide to institute disciplinary
proceedings against a senior manager (which is doubtful) it certainly
can never be the case
that a municipal council can delegate authority
or power to act unlawfully. In other words, the council cannot
delegate to an executive
mayor authority to act contrary to either
the
Systems Act
or the Regulations promulgated thereunder.
[31]
I have touched upon the question of delegation inasmuch as that may
be the source of lawful conduct
on the part of the first respondent.
It must be emphasized, however, that the first respondent does not in
fact claim such authority.
She has chosen not to challenge the
allegation made by the applicant that her conduct is in breach of the
principle of legality.
The letter dated 6 April 2022 providing
reasons for the summary dismissal suggest that the first respondent
was exercising delegated
authority. She has offered no evidence to
support that claim in these proceedings.
[32]
As will be seen from the reasons given by the first respondent, the
complaints relate to alleged
failure to report to the first
respondent, allegations of abusive conduct and the like, and
unauthorized communications with staff.
These are quintessentially
matters that concern misconduct which, if established, may entitle
the council to institute disciplinary
proceedings. Thus the very
reason for the summary dismissal required compliance with the
Regulations for Discipline of Senior Managers.
There was no such
compliance.
[33]
Yet, the first respondent framed these allegations as evidencing ‘a
repudiation’
of the employment agreement which she was entitled
to accept, thereby cancelling the agreement. I am not aware of any
legal authority
which would entitle an employer to reply upon alleged
disciplinary breach of an employment contract as constituting a
repudiation,
entitling it to summarily cancel and dismiss. If it were
so, it would allow an employer to circumvent agreed or statutorily
prescribed
disciplinary procedures.
[34]
It follows from what I have set out above that the purported
termination of the employment services
of the applicant was unlawful.
The conduct of the first respondent was in breach of the principle of
legality and it cannot be
allowed to stand.
[35]
I turn now to the question of costs. Mr Beyleveld sought to persuade
me to order the first respondent
to pay the costs personally and on a
punitive scale. He motivated his request on the basis that the first
respondent was motivated
to remove Mr Qaba in the light of the
ongoing conflict about the City Manager position and that she did so
by acting without any
authority. This court should, in the
circumstances, reflect its disapproval of such egregious unlawful
conduct by making a punitive
costs order. Such costs should not be
borne by the municipality since these actions arise from the
underlying political conflict
within the council.
[36]
There is considerable force in the arguments made by Mr Beyleveld. It
seems clear from the background
to this matter and indeed the reasons
proffered for the actions taken by the first respondent, that the
political conflict within
the council lies at the heart of the
matter. The council is plainly divided in its approach to the
position of the City Manager.
Those councillors who held the day on
16 March believe that those who did so on 23 March acted unlawfully.
Those who held sway
on 23 March hold the opposite view. Two officials
are caught up in the resulting uncertainty. It is this situation
which must be
addressed.
[37]
The first respondent by purporting to summarily dismiss Mr Qaba has
not served to resolve the
problem. Her conduct was plainly unlawful –
egregious even – and high handed. She did so in the exercise of
her functions
as a political office bearer of the municipality, even
though she has no authority to dismiss a senior manager. Such conduct
by
an employer against an employee merits a punitive award of costs.
[38]
The only question is whether these should be paid by the first
respondent personally. Mr Ford
submitted that there was nothing to
suggest that the first respondent acted
mala fide
. For this
reason, a personal cost order should not be made.
[39]
I gave serious consideration to such an order. I decided, however, to
accept that the first respondent
acted in what she considered to be
the interests of the municipality. She may have done so upon poor
advice or perhaps even without
proper advice. It should, however, be
emphasized that this acceptance does not mean that egregious
illegality such as that which
occurred here will not in future be
appropriately sanctioned by a personal cost order. Political office
bearers would be advised
to ensure that their conduct falls within
the ambit of their authority. For the present, it suffices to order
the first respondent,
in her official capacity, to pay the costs on a
punitive scale.
[40]
It is for the reasons outlined above that I made the order of 8 April
2022.
G.
G GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
Obo
the Applicant
: Adv
A. Beyleveld SC
Instructed
by
:
Lulama Prince Inc, Mill Park, Gqeberha
Obo
the First Respondent
: Adv
E. A. S. Ford SC
Instructed
by
: Rushmere Noach Inc, Greenacres,
Gqeberha
Heard
:
8 April 2022
Made
available
:
12 April 2022
[1]
The Municipality of Nelson Mandela Bay and Others v Anele Qaba and
Others (Case No. 862/2022) (5 April 2022).
[2]
Local Government: Municipal Systems Act No. 32 of 2000
.
[3]
See para [8] of the judgment.
[4]
See Democratic Alliance v Kouga Municipality and Others
[2014] 1 All
SA 281
(SCA).
[5]
GN 344 of 2011: Local Government: Disciplinary Regulations for
Senior Managers, 2010, Government Gazette No 34213.
[6]
The term ‘senior manager’ is defined in the Regulations
to mean those appointed in terms of s 56 of the Systems Act.
[7]
Regulation 2 (b)(v).
[8]
Regulation 2 (b)(viii)
[9]
Regulation 5(2).
[10]
Regulation 5(3)(a).
[11]
Regulation 5(3)(b).
[12]
Regulation 5(5).
[13]
Regulation 5(6).
[14]
Regulation 5(7).
[15]
Regulation 6(1).
[16]
Regulation 12(1)(f).
[17]
[2002] 5 BLLR 417 (LC).
[18]
Local Government: Municipal Structures Act No. 117 of 1998
.
[19]
Ibid at para [22].