About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2022
>>
[2022] ZAECQBHC 19
|
|
Mayana v Executive Mayor: Nelson Mandela and Others (1655/2022) [2022] ZAECQBHC 19 (5 August 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION OF
THE HIGH COURT, GQEBERA)
Case No: 1655/2022
In the matter between
SIYANDA
MAYANA
Applicant
And
EXECUTIVE MAYOR: NELSON
MANDELA
1
st
Respondent
BAY METROPOLITAN
MUNICIPALITY CITY MANAGER:
NELSON
MANDELA
2
nd
Respondent
BAY METROPOLITAN
MUNICIPALITY
NELSON MANDELA
BAY
3
rd
Respondent
METROPOLITAN MUNICIPALITY
EXECUTIVE DIRECTOR:
CORPORATE SERVICES
4
th
Respondent
NELSON MANDELA BAY
METROPOLITAN
MUNICIPALITY
JUDGMENT
PAKATI J
INTRODUCTION
[1]
The applicant approached this Court on an urgent
basis seeking an order declaring the alleged unlawful termination of
his employment
as a Strategic Advisor by the first and third
respondents. He also applied for an order setting aside the said
termination as of
no force and effect and that he be reinstated
pending compliance with; (a) the Disciplinary Procedure Collective
Agreement of 2018
to 2023; (b) the terms of the written contract of
employment concluded between him and Nelson Mandela Bay Metropolitan
Municipality
("the Municipality"); and (c) the
Municipality's, applicable Code of Conduct and Human Resources
policy. He alleged that
the decision to terminate his employment was
unlawful, unconstitutional and null and void. He sought an order that
the Executive
Mayor, Municipality and Executive Director, first,
third and fourth respondents respectively, together with any other
respondent
who unsuccessfully opposed the application, be directed to
pay costs of the application, jointly and severally, the one paying
the other to be absolved, on attorney and client scale, including
costs of two counsel. The respondents opposed the application.
THE PARTIES
[2] The applicant was
employed by the Municipality, as a Strategic Advisor: Monitoring and
Evaluation and is linked to the current
term of office of the
Executive Mayor and reports directly to her. He is a member and
regional chairperson of a political party
called GOOD in the Nelson
Mandela Region. The first respondent is the Executive Mayor: Nelson
Mandela Bay Metropolitan Municipality
(the Executive Mayor"),
and is cited in her personal and official capacity. The second
respondent, the City Manager, is cited
in his/her official capacity
as the accounting officer. No relief is sought against him/her. The
Municipality and Executive Director:
Corporate Services, ("the
Executive Director") are third and fourth respondents,
respectively. The Municipality is cited
as the applicant's employer
and the fourth respondent, as the functionary who signed the letter
that terminated his employment.
BACKGROUND FACTS
[3]
The foundational facts herein are as
follows: on 09 December 2021 the applicant and the Municipality
concluded a Memorandum of Agreement
("the Agreement") in
which he was employed in his current position at Task Grade 15 on a
fixed salary package ofR844
236 per annum. His contract commenced on
01 December 2021, and this was regardless of the date on which the
Agreement was signed.
Regarding fringe
benefits, paragraph 9 of the Agreement stipulates that 'the
Contractor shall not be entitled to any of the fringe
benefits
applicable to permanent staff and consequently shall not at any stage
have any claim against the employer for pension,
medical, group life,
housing subsidy or other benefits. For purposes of this case, the
relevant terms of the agreement are inter
alia, recorded in
paragraphs 16 and 17 of the agreement thus:
" 16. Misconduct
The Contractor shall be
guilty ofmisconduct ifhe/she:
16. I commits a breach
ofany ofthe provisions ofthis agreement;
16.2 does not obey a
lawful order given by any person having authority to give it, or
disregards or willfully neglects to execute
such order, or by word or
deed shows resistance;
16.11
engages
in any rude, abusive, insolent, provocative, intimidatory or
aggressive behavior to a fellow contractor or member of the
public;
16.12
engages
in any other behavior or commits any other act which would give just
cause for discipline.
17. Termination of
Contract The contract will terminate:
17.1 automatically and
without notice on expiry ofthe term referred to in the contract,
subject to any extension or renewal. It
is specifically recorded that
the contract shall not be interpreted in such a manner as to create
expectations ofa permanent employment,
extension or renewal. The
Employer's decision not to renew or extend the contract shall not
constitute an unfair dismissal and
the Contractor shall not be
entitled to anyform ofcompensation;
17.3 at the Employer's
initiative, for reasons relating to misconduct, incapacity,
unacceptable or unsatisfactory performance, breach,
or for any other
reason recognised by law as sufficient, on the following basis:
17.3. I one (1) week's
written notice if the Contractor has been employed for six (6) months
or less; or
17.3.2 two (2) weeks
written notice if the Contractor has been employed for more than six
(6) months but not more than one (1) year;
or
17.3.
four (4) weeks written notice ifthe Contractor has been employedfor
one (l) year or more.
[4]
The issues for determination are whether:
4.1
The respondents are properly before Court;
4.2
The matter is urgent;
4.2
The applicant's employment was unlawfully
terminated in accordance with the employment contract, and whether he
has made out a case
for reinstatement;
4.3
There is a need for compliance with the
Disciplinary Procedure Collective Agreement of 2018 to 2023 and the
Municipality's code
of conduct and Human Resources policy.
IS THE MUNICIPALITY
PROPERLY BEFORE COURT?
[5]
On 20 June 2022, a notice in terms of Rule
7 of the Uniform Rules of Court was filed by the applicant's
attorneys of record disputing
the authority of Ms Siganga to oppose
the application and McWilliams & Elliot Attorneys to act on
behalf of the respondents.
He argued further that a resolution to
institute or defend an application should be taken by the Municipal
Council and not the
Municipal Manager. He stated that Ms Siganga and
McWilliams & Elliot Attorneys should provide a resolution issued
by the Municipal
Council and a power of attorney authorizing them to
oppose the application on behalf ofthe Municipality otherwise the
answering
affidavit is pro non scripto. A resolution dated 17 June
2022 ("annexure "SMV') signed by Dr Nqwazi, the City
Manager,
giving authority to Ms Siganga to 'sign all affidavits
pertaining to this matter and to also ratify all steps taken in the
matter'
was, according to Mr Ndamase, on behalf of the applicant, not
a valid resolution because the names of the attorneys were not
mentioned.
[7]
For
this assertion, Mr Ndamase relied on s 11(1) of the Systems Act which
states that the executive and legislative authority of
a municipality
is exercised by the council of the municipality, and the council
takes all the decisions of the municipality subject
to s 59
[1]
.
He also relied on s 151(2) of the Constitution which provides that
the executive and legislative authority of a municipality is
vested
in its Municipal Council.
[8]
Ms Msizi, for the respondents, submitted
that the City Manager should not be expected to call a council
meeting every time there
is a legal issue to be attended to. She
submitted further that it is settled law that deposition to an
affidavit could not be challenged
by using Rule 7. She relied on
several decided cases, inter alia, Unlawful Occupiers School Site v
City ofJohannesburg
2005 (4) SA 199
(SCA) 207. She further mentioned
that on 22 November 2021 a resolution was adopted by the Municipal
Council authorizing the City
Manager to issue a resolution
authorizing a person to act on behalf ofthe Municipality. However,
this resolution was not part of
the papers. It was therefore her say
so.
[9]
Rule 7 of the Uniform Rules of Court
provides:
"Subject to the
provisions of subrules (2) and (3) a power of attorney to act need
not be filed, but the authority of anyone
acting on behalf of a party
may, within 10 days after it has come to the notice of a party that
such person is so acting, or with
the leave of the court on good
cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless
he satisfied the court that he is
authorised so to act, and to enable him to do so the court may
postpone the hearing of the action
or application."
[10]
Streicher
JA in Ganes andAnother v Telecom Namibia Ltd
2004 (3) SA 615
(SCA)
([2004] 2 All SA at 624
[2]
held:
"The
deponent to an affidavit in motion proceedings need not be authorised
by the party concerned to depose to the affidavit.
It is the
institution of the proceedings and the prosecution thereof which must
be authorised. In the present case the proceedings
were instituted
and prosecuted by a firm of attorneys purporting to act on behalf of
the respondent. In an affidavit filed together
with the notice of
motion a M Kurz stated that he was a director in the firm of
attorneys acting on behalf of the respondent and
that such firm of
attorneys was duly appointed to represent the respondent. That
statement has not been challenged by the appellants.
It must,
therefore, be accepted that the institution of the proceedings was
duly authorised. In any event, Rule 7 provides a procedure
to be
followed by a respondent who wishes to challenge the authority of an
attorney who instituted motion proceedings on behalf
of an applicant.
The appellants did not avail themselves of the procedure so provided.
(see Eskom v Soweto City Council
1992 (2) SA 703
(W) at 705 C- J)
[3]
"
[11]
Nugent
JA in Manana v King Sabata Dalindyebo Municipality [2011] 3 All SA
140 (SCA)
[4]
"[17] In my view s
55(1) is no more than a statutory means of conferring such power upon
municipal managers to attend to the
affairs of the municipality on
behalf of the municipal council. There is no basis for construing the
section as simultaneously
divesting the municipal council of any of
its executive powers."
[12] In casu, Ms Siganga,
the deponent to the answering affidavit need not be authorised to
depose to an affidavit as provided for
by Rule 7. Regarding
McWilliams & Elliott Attorneys, the notice of filing of the
answering affidavit was delivered under their
name and signature. The
said notice was filed on behalf of the respondents as that was
unchallenged by the applicant. In any event
if McWilliams &
Elliott Attorneys had acted on behalf of the respondents without the
authority to do so, the respondents would
challenge that. In this
case, they did not. It must be accepted that acting on behalf of the
respondents by the said firm of attorneys
was authorised.
JURISDICTION
[13]
When this matter was heard jurisdiction was not an issue. For the
first time, Ms Msizi submitted in the supplementary heads
of argument
that because the applicant challenged his dismissal, he should refer
his matter to the Commission for Conciliation,
Mediation and
Arbitration ("CCMA") in terms of clause 24 of the
Agreement
[5]
.
It is noteworthy that this was not the reason why supplementary heads
of argument were filed in the first place. I requested the
parties to
file same after Ms Msizi filed three authorities two days after the
matter was heard. The applicant was granted an opportunity
to deal
with the authorities. The authorities dealt with whether a party
could rely on a collective agreement when he/she was not
a party. In
any event, the parties consented to the jurisdiction of this court in
terms of clause 24 of the Agreement. The challenge
of lack of
jurisdiction can, therefore not stand.
URGENCY
[17]
The applicant insisted that the matter was
urgent. According to him, non-payment of his salary would adversely
affect his ability
to meet his financial obligations. He stated
further that as a breadwinner he would be unable to provide for his
family who depend
on him for support and that proceedings in due
course would not address his non-payment. He further listed his
monthly obligations
showing severe prejudice he stood to suffer if
his employment would be terminated. He asserted that by terminating
his employment,
the Municipality did not honour its contractual
obligation. He asserted further that he received the letter of
termination on Friday
10 June 2022 and approached his attorneys of
record on 13 June 2022 which shows no delay.
[18]
In response, the respondents contended that
financial strain on its own is not sufficient to justify grant of an
order on an urgent
basis in that the applicant failed to comply with
the requirements of Rule 6(12) of the Uniform Rules of Court. That is
so because
he failed to explicitly set out the grounds for urgency
and the reasons why he claimed that he would not be accorded
substantial
redress at the hearing in due course. They asked that the
application be struck from the roll for lack of urgency.
[19]
It
is trite that an applicant seeking relief on an urgent basis must
justify the necessity to circumvent the ordinary time periods
set out
in the rules. Coetzee J in Luna Meubel Vervaardigers v Makin and
Another
1977 (4) SA 135
(WLD)
[6]
explained
what urgency in applications save for the applications that fall
under Rule 6(4) thus:
"Urgency involves
mainly the abridgment of times prescribed by the Rules and,
secondarily, the departure from establishing
filing and sitting times
of the Court.
1. The question is
whether there must be a departure at all from the times prescribed in
Rule 6 (5) (b). Usually this involves a
departure from the time of
seven days which must elapse from the date of service of the papers
until the stated day for hearing.
Once that is so, this requirement
may be ignored and the application may be set down for hearing on the
first available motion
day but regard must still be had to the
necessity of filing the papers with the Registrar by the preceding
Thursday so that it
can come onto the following week's motion roll
which will be prepared by the Motion Court Judge on duty for that
week.
2.
Only if the matter is so urgent that the
applicant cannot wait for the next motion day, from the point of view
of his obligation
to file the papers by the preceding Thursday, can
he consider placing it on the roll for the next Tuesday, without
having filed
his papers by the previous Thursday.
3.
Only if the urgency be such that the
applicant dare not wait even for the next Tuesday, may he set the
matter down for hearing in
the next Court day at the normal time of
10.00 a.m. or for the same day if the Court has not yet adjourned.
4.
Once the Court has dealt with the causes
for that day and has adjourned, only if the applicant cannot possibly
wait for the hearing
until the next Court day at the normal time that
the Court sits, may he set the matter down forthwith for hearing at
any reasonably
convenient time, in consultation with the Registrar,
even if that be at night or during a weekend.
Practitioners should
carefully analyse the facts of each case to determine, for the
purposes of setting the case down for hearing,
whether a greater or
lesser degree of relaxation of the Rules and of the ordinary practice
of the Court is required. The degree
of relaxation should not be
greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service
to the requirements of Rule
6 (12) (b) will not do and an applicant must make out a case in the
founding affidavit to justify the
particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set down.
[20]
A court faced with an urgent application
should consider whether the reasons that make the matter urgent have
been set out and whether
the applicant will not obtain substantial
relief at a later stage. The applicant must satisfy the court that
the matter is indeed
urgent by setting out in his/her founding
affidavit cogent reasons why he/she seeks urgent relief.
[21]
Only
once an applicant has persuaded the court that sufficient grounds
exist which necessitate a relaxation of the rules and ordinary
practice, will the court proceed to consider the matter as one of
urgency. The extent to which the court will allow parties to
dispense
with the rules relating to time periods will depend on the degree of
urgency in the matter.
[7]
[22]
In Caledon Street Restaurants CC v D'Aviera
[1998] JOL 1832
(SE) Kroon J held:
"In
applications brought under Rule 6(12) of the Uniform Rules of Court,
it is incumbent on the applicants to persuade the
court that the
non-compliance with the Rules and the extent thereof was justified on
the grounds of urgency. The applicant will
have to demonstrate
sufficient real loss of damage were he to be compelled to rely solely
or substantially on normal procedure.
In deciding whether financial
exigencies constituted a ground for urgency finding that no general
rule to such effect could be
laid down. Much would depend on
balancing the disadvantages and prejudices of all parties.'
[23]
In Harley v Bacarac Trading 39 (Pty) Ltd
[2009] 6 BLLR 534
(LC)
8
Mr
van Der Merwe submitted that the application was not urgent and
contended that the court had been disinclined to consider financial
hardship and more particularly loss of income as a good ground for
urgency. For this assertion, he referred to several cases. The
court
as per Van Niekerk J held:
"The
principle established in these cases is one that inclines this Court
to avoid what amounts to status quo relief in unfair
dismissal
disputes pending a final determination of the dispute by the
appropriate dispute resolution body. None of these cases,
it seems to
me, establishes that financial hardship and loss of income can never
be a ground for urgency. Ifan applicant is able
to demonstrate
detrimental consequences that may not be capable of being addressed
in due course and if an applicant is able to
demonstrate that he or
she will suffer undue hardship if the court were to refuse to come to
his or her assistance on an urgent
basis, I fail to appreciate why
this Court should not be entitled to exercise a discretion and grant
urgent relief in appropriate
circumstances. Each case must of course
be assessed on its own merits.'
[24]
In HOSPERSA & another v MEC for Health,
Gauteng Provincial Government
[2008] ZALC 45
;
[2008] 9 BLLR 861
(LC) Basson J held
that an employee was entitled to urgent relief in circumstances where
her employer had unilaterally terminated
her salary.
[25]
In casu, the applicant's employment was
summarily terminated. It was not denied that non-payment of his
salary would adversely affect
him and his children as he would be
unable to provide for their schooling, nutrition and shelter. It was
further undisputed that
an application of this nature would take less
than four to six months to be heard if opposed. There was no
allegation that the
urgency was selfcreated as there was no delay in
instituting the application. Paragraphs 62 to 76 of the founding
affidavit deal
with grounds upon which the applicant alleges that the
application is urgent and explained why he would not be afforded
substantial
redress at the hearing in due course. The reasons stated
by the applicant allegedly rendering the matter urgent were not in
dispute.
There is also no allegation that the urgency was
self-created. Similarly, the allegation that the applicant failed to
comply with
the requirements of Rule (6)12 cannot stand. I am
satisfied that the application is urgent
THE APPLICANT'S CASE
[26]
The applicant asserted that the infighting
amongst the political parties represented in the Municipality has
culminated into various
legal challenges since the appointment of the
City Manager, in what he described as 'a chaotic meeting on 16 March
2022.' He referred
to paragraph 15 of a judgment penned by Goosen J
under case number 862/2022, delivered on 05 April 2022 as depicting
'the infamous
council meeting'. It reads:
"(b) Urgency
[15]
Mr Albertus (who appeared with Moorehouse) for the applicants,
submitted that the matter was urgent by reason, inter alia,
of the
fact that there presently were two persons who claimed authority to
exercise the powers ofthe municipal manager. This was
causing
significant confusion amongst senior managers and staff members of
the municipality. This fact alone required urgent intervention
to
prevent ongoing prejudice to the municipality. It was also argued
that the purported authority exercised by Mr Qaba may result
in
administrative actions being taken to the financial and other
prejudice of the municipality. Insofar as urgency was concerned
both
Mr Beyleveld (for the first and second respondents) and Mr Mullins
(for the third respondent) accepted that a case for urgent
enrolment
had been made out. It is therefore unnecessary to address the issue
any further. '
[27]
The applicant mentioned a further meeting
held on 23 March 2022 whereat the Municipal Council resolved to
revoke the decision of
the Executive Mayor to irregularly appoint Dr
N Nqwazi as the City Manager and another, on 02 June 2022, attended
by the Mayor
whereat some of the resolutions taken can be summarized
thus:
27.1
The council decision taken on 16 March 2022
regarding the purported appointment of Dr Nqwazi was revoked;
27.2
The Municipality would approach this court
for an order setting aside the purported appointment of Dr Nqwazi;
and
27.3
That the Council appointed Mr Lonwabo Ngoqo
("Mr Ngoqo") as the City Manager with immediate effect
after having been recommended
by the selection panel as the second
candidate.
[28]
On 04 June 2022, Dr Nqwazi approached the
court on an urgent basis seeking an interdict against the Mayor and
Mr Ngoqo from carrying
out the council resolution taken on 02 June
2022 which sought to appoint the latter as acting City Manager. The
matter was heard
on 07 June 2022. The application was opposed by the
Municipality. The applicant, in the company of Councilor Lawrence
Troon, another
elected representative of the Good political party,
stated that he was present in court on the day. The matter stood down
until
14:00 at the request of the Municipality after which counsel
for the latter received instructions from the Municipality's
attorneys
of record to consent to the order sought by Dr Nqwazi. He
was dismayed at the conduct ofthe Mayor for acting contrary to the
Council
resolution of 02 June 2022 which revoked the purported
appointment of Dr Nqwazi. It is against this background that he and
Councilor
Troon approached the Mayor at Dehli Restaurant in Richmond
Hill and enquired from her as to why she acted against the said
council
resolution.
[29]
In response, the Mayor told him that 'she
will do what she says as she gives instructions as the Executive
Mayor'. His response
to the Mayor was: "We will deal with you,
politically and will remove you as the Mayor." By this, he said
he meant that
they would remove her as Mayor because she was not
acting in the best interest of the Municipality.
[30]
On 10 June 2022, the applicant received a
letter dated 08 June 2022 ("NS3") from the Executive
Director: Corporate Services,
which reads:
"POLITICAL
CONTRACTUAL STAFF TERMINATION: STRATEGIC ADVISOR
With reference to your
contract entered into with the Nelson Mandela Bay Municipality, you
are hereby notified that your contract
terminates with immediate
effect (8 June 2022). Thank you for the service rendered during your
contract period"
[31]
Attached to the above letter, was an email
(Annexure "SMS') written by the Mayor to the City Manager, which
records:
"As the Executive
Mayor I am completely appalled at the behavior of Mr Mayana who is
employed in my office as an advisor.
In a Country where we
face a pandemic of Gender Based Violence his behavior towards myself,
the Deputy Executive Mayor, the Chief
Whip and the legal team on 7
June 2022 made it very clear that he is not an ambassador in our
Country's fight against the [scourge]
of abuse facing women and
children. His aggression and body language made me realize that I
have a political appointee that has
no respect for this office and
specifically towards me as a woman who holds the position of
Executive Mayor.
This office can never be
a place where women feel unsafe, it will not be tolerated, and I
cannot employ an individual who contributes
to such despicable acts
of violence and his utter and blatant lack of respect in our fight
against Gender Based Violence. Note
he has previously at a press
briefing openly indicated his lack of support towards me.
You
are hereby instructed to terminate Mr Mayana's employment with
immediate effect, and he is not to return to my Offices.'
[32]
The applicant alleged that the contents of
the letter dated 08 June 2021 (Annexure "SM5") were a
distortion of what happened
at the restaurant on 07 June 2022. He
contended that the argument between the Executive Mayor, Deputy Mayor
and himself as well
as the Chief Whip came about as a result of an
instruction to the Municipality's legal team that was at odds with
the council resolution
dated 02 June 2022. He contended further that
the allegation of gender-based violence was false and misleading as
he uttered no
words that could constitute any form of gender-based
violence towards the Executive Mayor. He stated: "What happened
on the
day are the machinations ofthe political infighting that has
been brewing in the Municipality since the new administration
assumedpower
after 2021 local government elections.
[33]
The applicant insisted that the termination
of his employment was unlawful and that there was non-compliance with
the notice period
ofthe employment contract. He stated that the only
email he received from Executive Director on 10 June 2022 is the one
attached
to the answering affidavit (Annexure "NS3") The
became aware of NS2 to the answering affidavit when he consulted with
his legal representative during the preparation of the replying
affidavit. He argued that annexure "NS2" also failed
He
further alleged that no due procedure was followed by the
respondents. The respondents contended that there existed no
employment
relationship between the applicant and the Municipality.
However, the respondents admitted that the Municipality was bound by
the
employment agreement signed by the parties.
[341 The applicant
alleged further that neither the Executive Mayor nor the Executive
Director had the authority to terminate his
employment. For this
assertion, he relied on s 55(1) (g) and (h) of the Systems Act 32 of
2000 which provides:
"550) As head of
administration the municipal manager of a municipality is, subject to
the policy directions of the municipal
council, responsible and
accountable for(g) the maintenance of discipline of staff
(h) the promotion of
sound labour relations and compliance by the municipality with
applicable labour legislation."
[35]
In paragraph 19 of the answering affidavit, the respondents' response
records:
"
AD PARAGRAPHS 44
TO 61 THEREOF
I have already explained
that the Applicant is not an employee of the Municipality. The terms
of his contract with the Municipality
are fully explained in the
Annexure SMI to the Founding Affidavit. If the Applicant contends
that there has been a disregard of
the terms of this contract, that
issue must be determined in due course not in this application."
THE RESPONDENTS' CASE
[36]
The respondents denied that the applicant
is an employee of the Municipality and alleged that no employment
relationship existed
between them. They confirm his appointment as a
Strategic Advisor of the Municipality. It is undisputed that the
applicant's appointment
is a political one, distinct from that of an
employee. It was also undisputed that political appointments are made
in terms of
the Municipality's Organizational Establishment Policy
which was approved by the Municipality's Executive Mayoral Committee
on
10 November 2010. Clause 4 of this policy states that individuals
who are political employees fall into a category of employment
with
no benefits, save for those provided for by the Basic Conditions of
the Employment Act. The respondents admitted that the
applicant's
employment was terminated by the Municipality as per the letter dated
10 June 2022 (Annexure "NS2") in terms
of clause 17.3 of
the Agreement dealing with termination (see paragraph 3 above). It is
further undisputed that according to clause
2 of the agreement the
applicant's appointment is linked to the current term of office of
the Executive Mayor.
[37]
The respondents submitted that the Judgment
of Goosen J relied upon by the applicant is irrelevant to the issues
at hand. They argued
that the applicant has not given an explanation
why he has joined the City Manager, the Executive Mayor and the
Director of Corporate
Services. In the absence of such an
explanation, they submitted that this was a misjoinder. However, they
did not pursue this argument
when the matter was heard and it was
also not dealt with by the parties in their heads of argument. I will
deal with the issues
at hand.
[38]
According to the Acting Director: Legal
Services of the Executive Mayor, and the deponent to the answering
affidavit, at approximately
12:00, she, the Executive Mayor, Deputy
Mayor, Ms Buyelwa Mafaya, the Chief Whip, Mr Wandisile Jikeka, and
the Municipality's legal
team were busy consulting on the urgent
application brought by Dr Nqwazi against the Municipality at Dehli
Restaurant. The applicant
burst into the restaurant in the company of
Mr Troon. The former asked: "Why are you doing this?" At
that time, he was
directly confronting the Mayor. Both the applicant
and Mr Troon shouted and pointed fingers at the Mayor and her
companions. The
applicant simulated firing a gun at her and the
deputy Mayor, using his right hand. He and Mr Troon enquired: "Why
are you
selling the Municipality? Why are you doing this thing, we
are going to deal with you after this thing! The applicant turned to
Mr Troon and said: "Let's waitfor those other people to come."
He sat down for a while and stood up again. He pointed
a finger at
the Deputy Mayor and threatened that they were also going to deal
with her. The Deputy Mayor responded that she had
noted the threats.
The applicant and Mr Troon also insulted the two attorneys present at
the meeting and told them to ignore the
instructions given by the
Executive Mayor and other officials, otherwise, they would be removed
from the panel of lawyers in the
Municipality database.
[39]
In her confirmatory affidavit, the Executive Mayor
stated that the applicant and Mr Troon were angry and aggressive at
her and the
Deputy Mayor but not the Chief Whip who was a male
officer. She stated further that she was shaken up by the incident as
the applicant
and Mr Troon's demeanour showed a heated confrontation
to such an extent that she laid a criminal charge against them at
Humewood
Police Station under CAS 91/6/2022. The fact that the
applicant held a special position in her office, aggravated the
situation,
she added. She said: "His position required him to
have adopted a reserved and professional approach in dealing with the
office
of the Mayor, in other words with me and the Deputy Mayor. "
While this incident unfolded, it was captured on the video attached
to the answering affidavit.
RELATIONSHIP
BETWEEN THE APPLICANT AND THE
MUNICIPALITY
[40]
The applicant alleged that 'as a municipal
employee' he should be subjected to the same Code of Conduct as any
other municipal employee.
The respondents dispute that the applicant
is an employee of the Municipality. They alleged that the terms of
his contract are
as contained in the Memorandum of Agreement. In
reply, the applicant maintained that he is an employee of the
Municipality.
[41]
It is common cause that the applicant's
position of Strategic Advisor is a political appointment. His
position is therefore distinct
from an employee of the Municipality.
It is undisputed that political appointments were made in terms of
the Municipality's Organisational
Establishment Policy approved by
the Mayoral Committee on 10 November 2010. Clause 4.4 of the said
policy records:
"4.2...
•
That
the resolution should clearly state the period ofemployment (with
effect from when to whenl) and in this case for the term
of office of
the political office bearer concerned; noting that such employment
falls into the category of contract employment
with no benefits, save
for those provided for as per the Basic Conditions of Employment
Act.'
[42]
What remains of the relationship between
the applicant and the Municipality and a contractual relationship is
undisputed. This means
that both parties are bound by the terms of
the agreement they signed and nothing more and nothing less.
TERMINATION OF THE
APPLICANT'S EMPLOYMENT
[43]
The applicant alleged that the termination
of his contract by the respondents was in breach of the employment
contract as he was
given the requisite notice as envisaged in
paragraph 17.3 and more specifically 17.3.2 of the Agreement and this
rendered the termination
unlawful. It is worth mentioning that the
applicant admitted to receiving two letters (annexures "SM4"
and "SM5")
on 08 June 2022.
[44]
The applicant attached these annexures
("SM4" and "SM5") to the founding affidavit. On
10 June 2022 at or about
10:07 am he also received (annexure "NS3")
attached to the answering affidavit via email from the Executive
Director.
This annexure is attached to the founding affidavit as
annexure "SM9". Annexure "NS3" records:
"POLITICAL
CONTRACTUAL STAFF TERMINATION: STRATEGIC ADVISOR
With reference to your
contract entered into with Nelson Mandela Bay Municipality, you are
hereby notified that your contract terminates
with immediate effect
(8 June 2022)
Thank
you for the service rendered during your contract period.'
[45]
The similarity in annexures "MS5"
and "NS3" is that they do not comply with the notice period
provided for in
clause 17 3 2 of the Agreement. The applicant
admitted having received annexure "NS3" as it was addressed
to him but
he did not attach it to the founding affidavit, but it was
attached to the answering affidavit. No explanation for this was
proffered
by the applicant. Strangely, annexures "SM4 and "SM5"
that he claimed were forwarded to him by the Executive Director,
were
forwarded to the Executive Director by the Executive Mayor. The
effect of annexure "SM5" is that the Executive Mayor
instructed the City Manager to terminate the applicant's employment
with immediate effect. The applicant did not advance an explanation
as to how he got to be in possession of these documents.
[46]
Another letter dated 10 June 2022 written
by the Executive Director (Annexure "NS2") was, according
to the respondents,
forwarded to the applicant which he claims that
he did not receive. It reads thus:
"POLITICAL
CONTRACTUAL STAFF TERMINATION: STRATEGIC ADVISOR
Please note that your
contract was terminated based on a breach ofthe following clauses:
16.2 does not obey a
lawful order given by any person having authority to give it, or
disregards or willfully neglects to execute
such order, or by word or
deed shows resistance;
16.11
engages in any rude, abusive, insolent,
provocative, intimidatory or aggressive behavior to a fellow
contractor or member of the
public;
16.12
engages in any other behavior or commits
any other act which would givejust cause for discipline.
Although the termination
is effective from 8 June 2022, you will be compensated for a period
of two weeks in lieu of a notice period
stipulated at Clause 17.3.2
of your contract under the heading "Termination of Contract".
[47]
The letters dated 8 June 2022 ("NS3"
and "SM5") failed to give notice in compliance with clause
17 of the agreement.
However, the letter dated 10 June 2022 signed by
the Executive Director (Annexure "NS2" above), and
allegedly sent to
the applicant, records that the applicant would be
compensated for the two weeks' period in lieu of a notice period,
thereby acknowledging
the failure to comply with two weeks' notice in
the letters dated 08 June 2022. Be that as it may, the applicant
maintained that
Annexure "NS2" 'is a deliberate and
desperate attempt by the respondents to mislead this Honourable Court
into believing
that there has been compliance with the provisions of
section 17 of my employment contract when, in fact there has been no
such
compliance. ' He alleged that the deponent to the answering
affidavit failed to explain how annexure "NS2" was
delivered
to him.
[48]
The respondents did not dispute that
annexures "NS3" did not comply with clause 17 of the
Agreement. To confirm this,
paragraph 15.2 of the answering affidavit
states:
"I admit the
memorandum of agreement concluded between these two parties and the
terms thereof as summarized by the applicant.
I particularly admit
that the Third respondent is bound by the terms of clause 17 of the
Agreement. It is for this reason that,
after the applicant committed
the misconduct, which I refer to later in this affidavit, the Third
Respondent terminated the contract
as per its letter of 1 0 June 2022
issued in terms of clause 17.3 of the contract. I attach a copy of
this letter marked Annexure
NS2."
[49]
I consider that annexure "NS2" is
dated 10 June 2022, two days after annexure "NS3" was
forwarded and received
by the applicant. The notice of motion is
dated 17 June 2022 and the matter was filed on the same date. To
suggest that annexure
"NS2" was a deliberate and desperate
attempt to mislead the court is unsubstantiated considering the
admission by the
respondents in clause 15.2 of the answering
affidavit. The respondents immediately recognized the noncompliance
with clause 17.3.2
of the Agreement and within two days, before the
application was instituted on 17 July 2022, it was corrected.
Annexure "NS2"
as well as the admission in clause 15.2 of
the answering affidavit is an acknowledgement by the respondents that
the applicant
is entitled to two weeks' written notice as he had been
employed for more than six months but less than a year. In the
circumstances,
the applicant cannot insist that the termination of
his employment was unlawful because he was not given notice.
[50]
The applicant asserted that the
Municipality acted unlawfully by not subjecting him to the Code of
Conduct like other municipal
employees. He was not afforded an
opportunity to be heard and no due process was followed, so he
argued. For this assertion, he
relied on clause 16.12 of the
employment contract (see para 3 supra). The applicant alleged that
the Executive Mayor abused her
powers for an ulterior motive because
he held a different view to hers. He stated that the Municipality was
not supposed to summarily
terminate his employment without a fair
process being followed. That is so because it is the Municipal
Manager who has the authority
to terminate an employment contract,
the argument continued.
[51]
The applicant requested that his employment
contract be read together with the provisions of the Collective
Agreement of 2018 to
2023 which is applicable to all municipalities
including the City Manager. In response, the respondents submitted
that the applicant
is not an employee of the Municipality.
[52]
The Collective Agreement is in accordance
with the provisions of the
Labour Relations Act 66 of 1995
as amended
and was entered into between the South African Local Government
Association (SALGA), the Employers Organization and
Independent
Municipal and Allied Trade Union (IMATU) and South African Municipal
Workers Union (SAMWU). Clause 7 deals with the
disciplinary procedure
which is brought before the Municipal Manager or his authorized
representative for consideration and decision.
[53]
It is not in dispute that the applicant is
not a member of a trade union and was not a party to the Collective
Agreement of 2018
to 2023. He is also not an employee of the
Municipality in the sense that he is not a formal employee. He is a
contract employee
and therefore bound by the terms of the Agreement.
No disciplinary process was provided for in the Agreement. No clause
in the
Collective Agreement that includes contract employees.
Similarly, no clause deals with the code of conduct in the Agreement.
He
signed the Agreement and is therefore bound by it. It is
noteworthy that in the supplementary heads of argument, the applicant
did not insist that the respondents should comply with the Collective
Agreement. In my view, the Code of Conduct and Collective
Agreement
applicable to other municipal employees, were not applicable to the
applicant.
[54]
Reliance be the applicant on sub-clause
16.12 of the Agreement cannot stand because this sub-clause is one of
the lists of misconduct
a contractor would be guilty of if committed.
It is not an independent clause.
[55]
Clause 22 of the agreement deals with good
faith and reads: "The parties undertake to observe the utmost
goodfaith in the implementation
ofthis contract, and they warrant
that, in their dealings with each other, they will do anything nor
refrainfrom doing anything
that might prejudice or detractfrom the
rights, assets or interests ofeach other. " The parties act in
good faith if they
allow themselves to be bound by the terms of the
Agreement they concluded. That is not the position in this case. In
my view, the
applicant has not made out a case for reinstatement.
The application must
fail.
COSTS
[56] The outstanding
issue is costs. Mr Ndamase submitted that the conduct of the
respondents amounted to abuse of power and urged
me to show
displeasure and grant a punitive costs order against the respondents.
He submitted further that the respondents employed
two counsel which
shows the seriousness of the matter. He requested that the applicant
also be granted costs of two counsel, if
successful.
[571 Ms Msizi argued that
costs should follow the result and no punitive costs order should be
made. She added that costs should
be on a scale as between party and
party.
[58]
It
is a fundamental principle that a party who succeeds should be
awarded costs and this rule should not be departed from except
on
good grounds
[8]
The
award of costs is wholly within the discretion of the court. It is a
judicial discretion and must be exercised on the grounds
upon which a
reasonable person could have come to the conclusion arrived at.
10
[59]
In my view, costs on a scale as between
party and party would be a proper award in the circumstances. There
is no reason why costs
should be ordered on a scale as between
attorney and client.
[60]
In my view, this matter was not complicated
to justify employment oftwo counsel.
The applicant's
application is dismissed with costs on a scale as between party and
party.
BM PAKATI
JUDGE OF THE HIGH
COURT, EASTERN CAPE DIVISION, GQEBERA
COUNSEL FOR APPLICANT:
ADV B NDAMASE
INSTRUCTED BY: S/YA
COLEKILE INC
COUNSEL FOR THE
RESPONDENT: ADV N MSIZI AND ADV M PANGO
INSTRUCTED BY: MC
WILLIAMS & ELLIOTT
DATE HEARD: 21 JUNE 2022
DATE DELIVERED: 05 AUGUST
2022
[1]
S
59
of the
Local Government: Municipal Systems Act 32 of 2000
provides: "59(2) A delegation or instruction in terms of
subsection (l) — (a) must not conflict with the Constitution,
this Act or the Municipal Structures Act; (b) must be in writing:
... (e) does not divest the council of the responsibility concerning
the exercise of the power or the performance of the duty;"
[2]
At
para 19.
[3]
In
Eskom v Soweto City Council
1992 (2) SA 703
(W) at 705C — J
Flemming DJP held: "I find the regularity of arguments about
the authority of a deponent unnecessary
and wasteful."
[4]
At
para [17].
[5]
Clause
24 of the Memorandum of Agreement provides: "Jurisdiction —
The parties consent firstly to the jurisdiction
of the Commission
for Conciliation, Mediation and Arbitration (CCMA) and if the CCMA
is not able to adjudicate, the Labour Court
or the High Court of
South Africa, whichever has jurisdiction, will adjudicate the
dispute."
[6]
At
136H.
[7]
Natal
Union of Mineworkers v Black Mountain-A Division of Anglo Operations
Ltd [2007] 28 ILJ 2796 (LC) at para [12].
8
At
536.
[8]
See
South African Association of Personal Injury Lawyers v Heath
[2000] ZACC 22
;
2001
(1) SA 883
(CC) at 912. Beinash v Wixley
[1997] ZASCA 32
;
[1997] 2 All SA 241
;
1997
(3) SA 721
(A).