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[2023] ZAECMKHC 106
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Mayana v Executive Mayor: Nelson Mandela Bay Metropolitan Municipality and Others - Appeal (CA09/2023) [2023] ZAECMKHC 106 (19 September 2023)

FLYNOTES:
LABOUR – Contract –
Termination
–
Misconduct
at municipality – Appellant confronting mayor and deputy
major at restaurant – Court a quo found nothing
wrong with
the termination – Employment contract did not expressly
provide for hearing prior to termination –
No basis for
reading the collective agreement with the employment contract and
there was no implied term that entitled him
to a hearing –
Appellant elected to frame his claim in contract and cannot
complain about the alleged unfairness of
the procedure –
Appeal dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case No: CA09/2023
In
the matter between:
SIYANDA
MAYANA

APPELLANT
and
EXECUTIVE MAYOR:
NELSON MANDELA BAY

FIRST Respondent
METROPOLITAN
MUNICIPALITY
CITY MANAGER: NELSON
MANDELA BAY

SECOND Respondent
METROPOLITAN
MUNICIPALITY
NELSON MANDELA BAY:
NELSON MANDELA

THIRD Respondent
METROPOLITAN
MUNICIPALITY
EXECUTIVE DIRECTOR:
CORPORATE

FOURTH Respondent
SERVICES NELSON
MANDELA BAY
METROPOLITAN
MUNICIPALITY
APPEAL JUDGMENT
Bloem
J
[1]
At the centre of this appeal is whether the appellant’s
services
were terminated in accordance with the agreement in terms
whereof he was employed.  The court
a quo
found nothing
wrong with the manner in which his services were terminated and
dismissed his application for reinstatement.
It is against the
judgment and order of the court
a quo
that he now appeals with
the leave of the court
a quo
.
[2]
The appellant concluded a written agreement with the Nelson Mandela
Bay
Metropolitan Municipality (the municipality), the third
respondent, to perform tasks, as specified by the Executive Mayor of
the
municipality (the mayor), the first respondent, as Strategic
Advisor-Monitoring and Evaluation (the employment contract). The
employment
contract commenced on 1 December 2021 and was linked to
the term of office of the incumbent mayor. The parties agreed that
the
appellant’s services would automatically terminate should
the mayor’s services be terminated before the expiry of her

term as mayor and that the employment contract would automatically
terminate on expiry of the mayor’s term of office.
[3]
It was undisputed that on 2 June 2022 the municipality’s
council
resolved firstly, to approach the High Court to set aside the
appointment of its municipal manager, Dr Nqwazi; and secondly,

to appoint Lonwabo Ngoqo as municipal manager with immediate effect.
Before the municipality could give effect to the resolutions,

Dr Nqwazi instituted an application on 4 June 2022 wherein she
sought an order that the municipality be interdicted from giving

effect to the above resolutions.  That application was on the
roll of cases to be heard on 7 June 2022.  The appellant
was at
court when the municipality’s counsel received a telephone call
from the municipality’s attorney instructing
her to consent to
the order sought by Dr Nqwazi.  The appellant overheard the
conversation between the municipality’s
counsel and attorney.
He was dismayed at what he had heard.  He, accompanied by
a councillor, Lawrence Troon, approached
the mayor at a restaurant.
She was in the company of the deputy mayor, the chief whip of the
municipality’s council,
the municipality’s legal advisor
and two attorneys from the firm which represented the municipality in
the litigation with
Dr Nqwazi.  It is from this stage that the
parties’ versions differ.
[4]
The appellant’s version was that, upon their arrival at the
restaurant,
‘I asked the First Respondent why she was acting
contrary to the Council Resolution of 2 June 2022 to appoint Mr
Lonwabo
Ngoqo as a City Manager.  The First Respondent’s
response was that she will do what she says as she gives instructions

as the Executive Mayor’ and his words to the mayor, the deputy
mayor and the chief whip were ‘that we will deal with
you,
politically and will remove you as the Mayor’.  He said
that the deputy mayor insinuated that he was threatening
to harm her
when he was referring to removing her and the mayor from leading the
municipality as they were, according to him, ‘clearly
not
acting in the best of interests of the Municipality, and defying the
lawfully taken Resolution of the Municipal Council of
2 June 2022’.
[5]
The mayor and the municipality’s acting director of legal
services,
Nobuntu Siganga, said they were perturbed by the
appellant’s version, which was intended to mislead the court
and to downplay
his violence at the restaurant.  They relied on
a video which someone had taken inside and outside the restaurant
when the
appellant and Mr Troon confronted the mayor and her
party.  The video consists of two parts.  The first part
shows
what happened inside the restaurant while the second part shows
what happened outside the restaurant.  The video showed that,

inside the restaurant, the appellant and Mr Troon approached the
table at which the mayor and her party were sitting.  What

follows hereunder is a transcription of what can be seen and heard on
the video:
‘
Appellant:
Why are you
doing this?  We are not conceding anything.  I
am telling you now.  And we will deal with you after this thing
(pointing
a finger at the mayor).
Appellant addressing Mr Troon
:
Let us wait for these other people to come here.
The
appellant then sat down at the same table shared by the mayor and her
party and said
:  There is going to be no instruction to say
that those people must concede.  That is a non-sensical
instruction.
Mayor:

It
is fine.
Appellant:
It
is not
fine.
Mayor:

There is.  No, there is. No, there is.
Appellant:
(got
up and said, pointing a finger at the mayor).  You voted
for Ngoqo.  Now you want to distance yourself from that
decision.
It is not going to happen.
Mayor:

There is an instruction.
Appellant:
(to
the municipality’s attorneys). We are telling you now, if
you go ahead with that thing, we will take you off the panel.
I
am telling you now, pointing a finger at the attorneys.
Mayor:

(to the attorneys).  You do what the mayor says.
Mayor:

(to the appellant):  You can jump up and down.
The
appellant and Mr Troon then focussed their attention on the deputy
mayor and the chief whip.
Mr
Troon:
(to
the chief whip).  You are not worth being the chief whip
because you sold out the municipality.
Deputy
mayor:
(asking the appellant).  Are you saying that
you will deal with
me?
Appellant:
We
are going
to deal with all of you.
The
appellant and Mr Troon told the attorneys not to proceed with “that
thing” lest they be taken off the panel.
Mr
Troon:
(to
the attorneys).  You will be off that panel.  You come
here to mix with these thieves.
Deputy
mayor:
(to the appellant).  If you say you will deal
with me, anything
that happens to me, you will answer for it.
Appellant:

No, no.
You know what I mean.  Politically we will remove
you as deputy mayor.  We will deal with you politically.
Mayor:

(to the appellant).  And you are going out of my office.
Appellant:

Let us see.
Are you bigger than council?
The
deputy made a call reporting to a person that an advisor in the
mayor’s office was threatening them.
The
appellant left briefly.
Appellant:

(on his
return).  Let me repeat it.  Politically, we are
going to remove you as mayor, so also the deputy mayor.  This is

a promise.
Deputy
Mayor:
I am reporting the threat to a senior police officer.
The
appellant and Mr Troon then left the restaurant
.’
[6]
The video furthermore shows that outside the restaurant, the mayor,
deputy
mayor and unknown persons are seen with the appellant and Mr
Troon, accompanied by two other males.  Mr Troon can be heard

saying that the mayor gave instructions that the municipality must
concede Dr Nqwazi’s application.  He enquired from
where
she obtained the mandate to make that concession.  The deputy
mayor is heard saying that her family would know who was
responsible
for her death if she was killed.  She said that she would be the
third councillor to be shot and killed by the
appellant.
[7]
The court
a quo
correctly identified clauses 16 and 17 of the
employment contract as the ones applicable to the dispute between the
municipality
and the appellant.  The relevant parts of those
clauses read as follows:
‘
16.
Misconduct
The contractor shall be
guilty of misconduct is he/she:
16.1
commits a breach of any of the provisions of this agreement;
16.2
does not obey a lawful order given by any person having authority to
give it, or disregards
or wilfully neglects to execute such order, or
by word or deed shows resistance;
.
. .
16.12
engages in any other behaviour 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 of the 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 created expectations of a
permanent appointment, 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 any form
of compensation;
17.2
at the Contractor’s initiative on the following basis:
17.2.1
one (1) week’s written notice if the Contractor has been
employed for six (6) months or
less; or
17.2.2
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
17.2.3
four (4) weeks written notice if the contractor has been employed for
one (1) year or more.
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:
17.3.1
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
17.3.3
four (4) weeks’ written notice if the contractor has been
employed for one (1) year
or more.’
[8]
The court
a quo
found that the appellant was given notice of
the termination of the employment contract in terms thereof and that
he had accordingly
failed to show that the termination of the
employment contract was unlawful.  The finding of the court
a
quo
in that regard was criticised before us.
[9]
The context of the termination of the employment contract was that it
could be terminated either automatically; by the appellant, as the
employee; or by the municipality, as the employer.  The

employment contract could automatically terminate in terms of clause
17.1 on the expiry of the period of the employment contract.

Clause 17.1 had to be read with clause 2, which provided that the
duration of the employment contract was linked to the term of
office
of the then incumbent mayor.  It meant that, if the mayor’s
services were terminated before the conclusion of
her term of office,
the employment contract also terminated on the date of the
termination of the mayor’s services.
[10]
Clause 17.2 provided for the termination of the employment contract
at the instance of
the appellant.  In terms thereof, he was not
required to give a reason for such termination.  What was
required of him
was to give written notice to the municipality of his
intention to terminate the employment contract.  The different
periods
of the notice depended on the length of his service.  If
he was employed for six months or less, he was required to give one

week’s written notice to the municipality, two weeks’
written notice if he was employed for more than six months but
not
more than one year; and four weeks’ written notice if he was
employed for more than one year.  The purpose of requiring
the
appellant to give notice was obviously for the benefit of the
municipality.  The municipality would, once it knew that
the
appellant would terminate the employment contract, firstly, establish
whether the appellant was up to date with the execution
of the duties
that he was required to perform for the mayor and, if he was not, to
ensure that he performed those duties during
the notice period; and
secondly, make arrangements for the appellant’s replacement.
Because the notice period was for
the municipality’s benefit,
nothing prevented the municipality from releasing the appellant from
serving the full notice
period, provided that the appellant was paid
his full salary and other benefits for the notice period.
[11]
Clause 17.3 provided for the termination of the employment contract
at the instance of
the municipality.  The notice periods in that
case were the same as in the case where the termination of the
employment contract
was at the appellant’s instance. The
difference between clauses 17.2 and 17.3 was that, where the
municipality terminated
the employment contract, it had to have a
reason to do so.  The listed reasons were ‘misconduct,
incapacity, unacceptable
or unsatisfactory performance, breach, or
for any other reason recognised by law as sufficient’.
[12]
The
municipality relied on clause 16.12 for the contention that on 7 June
2022 the appellant misconducted himself for the manner
in which he
confronted the mayor and deputy mayor at the restaurant about the
instruction to counsel not to oppose Dr Nqwazi’s
application.
In terms of clause 16.12, the appellant shall be guilty of misconduct
if he engaged in behaviour which would
give the municipality just
cause to discipline him.  Mr Ndamase, counsel for the
appellant, submitted that the text in
clause 16.12 must be understood
to mean in that, in the event of the appellant’s behaving or
acting in a manner that gave
just cause to discipline him, the
municipality was required to institute disciplinary proceedings
against him.  The submission
was that the word ‘discipline’
equated to disciplinary proceedings.  That submission cannot be
sustained.
If the parties had intended disciplinary proceedings
to be instituted against the appellant once the municipality had just
cause
to discipline him, the parties would most certainly have said
so in the employment contract.  The interpretation that was
sought to be given the word ‘misconduct’ in the context
of clause 16.12 would lead to absurdity and an unbusinesslike

result.  Such an interpretation would have had the result that,
in cases where the municipality made political appointments
of
employees, like in the case of the appellant, on the same terms as in
the present matter, it would have been required, in every
instance
where allegations of misconduct were raised against those employees,
to institute disciplinary proceedings.  That
would be the case
even though the municipality, for reasons of its own, may not have
wished to pursue such matters or institute
disciplinary
proceedings.
[1]
In my
view, the purpose of clause 16.12 was to give the municipality the
right to terminate the employment contract once
the appellant’s
behaviour gave rise to just cause for discipline.  In such a
case the appellant “
shall
be guilty of misconduct
”.
The municipality could then, in terms of clause 17.3 of the
employment contract, terminate the employment contract.
In my
view, based on the appellant’s conduct at the restaurant, the
municipality had just cause to discipline him.
[13]
The
appellant’s case was that the municipality breached the terms
of the employment contract, in that he should have been
given a
hearing before it terminated the employment contract.  The law
relevant to the entitlement of a person to a hearing
before the
termination of his or her services was articulated in
South
African Maritime Safety Authority v McKenzie.
[2]
Therein Wallis AJA (as he then was) stated that an
employee is entitled to a pre-dismissal hearing where that right
is
conferred by a statute or by an employment contract.  The right
to be heard before an employee’s services are terminated
arises
contractually where the contract provides for it either expressly,
impliedly or tacitly.
[3]
The
appellant was required to prove that the employment contract
contained an express, implied or tacit provision that entitled
him to
such a hearing.
[14]
It is
common cause that the employment contract did not expressly provide
that the appellant was entitled to a hearing before the
termination
of the employment contract at the municipality’s instance.
The appellant also did not allege that his alleged
entitlement to a
hearing arose from an implied or tacit term of the employment
contract.  Wallis AJA explained the difference
between implied
and tacit terms as follows in
McKenzie
:
[4]
‘
An
implied term properly so called is a term that is introduced into the
contract as a matter of course by operation of law, either
the common
law, trade usage or custom, or statute, as an invariable feature of
such a contract, subject only to the parties’
entitlement in
certain, but not all, instances to vary it by agreement.  Where
reliance is placed on such a term the intention
of the parties will
not come into the picture and the issue is the purely legal one, of
whether in those circumstances in relation
to a contract of that
particular type the law imposes such a term on the parties as part of
their contract.  A tacit term
is a term that arises from the
actual or imputed intention of the parties as representing what they
intended should be the contractual
position in a particular situation
or, where they did not address their minds to that situation, what it
is inferred they would
have intended had they applied their minds to
the question.
’
[15]
In
City
of Cape Town (CMC Administration) v Bourbon-Leftley and Another
NNO
[5]
Brand
JA stated that a tacit term is not easily inferred by courts.
That is so since courts are afraid that they might make
contracts for
the parties or supplement their agreements merely because it appears
reasonable or convenient to do so.  A party
who seeks to rely on
a contract which was tacitly concluded, must specifically allege that
the contract relied upon is a tacit
one.
[6]
The same principle applies to a party who seeks to rely on a tacit
term of a contract.  The appellant did not place
facts before
the court from which a tacit term, that the employment contract
contained a term which entitled him to a hearing before
the
municipality could terminate the employment contract, could be
inferred.  He accordingly cannot claim that he and the

municipality tacitly agreed that he was entitled to such a hearing.
[16]
Since the appellant has failed to prove that the agreement contained
an express or tacit
term that entitled him to a hearing before the
employment contract was terminated at the municipality’s
instance, I will
now consider whether the employment contract
contained, by operation of law, an implied term to that effect. Mr
Ndamase relied
on paragraphs 56, 57 and 58 of the appellant’s
founding affidavit for the submission that the terms of a collective
agreement
concluded in the South African Local Government
Bargaining Council (the SALGBC) were incorporated in the employment
contract.
That collective agreement was concluded on 6 February
2018 between the South African Local Government Association and two
trade
unions, the Independent Municipal and Allied Trade Union
(IMATU) and the South African Municipal Workers Union (SAMWU).  The

purpose of that collective agreement was stated in clause 5.1 thereof
to be the establishment of a fair, common and uniform procedure
for
the management of employee discipline.
[17]
Paragraphs 56, 57 and 58 of the appellant’s founding affidavit
read as follows:
‘
56.
I also humbly request that the provisions of my employment contract
be read together with the
provisions of the Disciplinary Procedure
Collective Agreement of 2018 to 2023 (“the Collective
Agreement”) which is
applicable to all municipalities,
including the Second Respondent herein. A copy of the said Collective
Agreement is attached hereto
marked SM6 and to which this
Honourable Court is respectfully referred.
57.
I further wish to state that at the hearing of this matter I shall
place reliance on the
contents of the entire contents of the said
Collective Agreement, particularly clauses 5 to 7 thereof.
58.
In summary, from the said clauses, it is clear that the application
of the said disciplinary
procedure is peremptory, that the rules of
natural justice and fair procedure shall be adhered to, and that any
allegation of misconduct
against any employee must be brought to the
attention of the Municipal Manager or his authorised representative
who shall proceed
with disciplinary proceedings, if satisfied that
there is a prima facie cause to believe that a case of misconduct has
been committed.’
[18]
It is apparent from the above quoted paragraphs that the only basis
upon which the appellant
contended that the employment contract
should ‘be read together with the provisions of the
Disciplinary Procedure Collective
Agreement’ is because,
according to him, the collective agreement ‘is applicable to
all municipalities, including the
Second Respondent herein’.
No factual or legal basis was laid in the appellant’s
affidavits for the contention
that the collective agreement applied
to him.  The heads of argument drafted on behalf of the
appellant also did not set out
the basis upon which the appellant
sought the collective agreement to be read with the employment
contract.
[19]
At the hearing Mr Ndamase’s attention was drawn to clause 1 of
the collective agreement,
which provided that the terms thereof
‘shall be observed by all Employers and Employees who fall
within the registered scope
of the SALGBC’.  Counsel then
submitted that the collective agreement applied to the appellant
because he was the municipality’s
employee.  The
submission was that, in terms of clause 1 of the collective
agreement, the municipality, as the employer, and
the appellant, as
the employee, were required to observe the terms of the collective
agreement.  What was missing from that
submission was whether
the appellant fell within the registered scope of the SALGBC.
He may or he may not.  If he fell
within the registered scope of
the SALGBC, the disciplinary proceedings, which provided that he was
entitled to a hearing before
the termination of the employment
contract, would have applied to him.  If he did not fall within
the registered scope of
the SALGBC, the collective agreement would
not have applied to him.  The appellant did not demonstrate, in
his affidavits,
heads or argument and at the hearing, that the
appellant fell within the registered scope of the SALGBC.  There
was no factual
basis upon which reliance could be placed on clause 1
of the collective agreement.  The appellant accordingly failed
to establish
that the collective agreement was binding on him.
[20]
Clause 4 of the collective agreement referred to the period of
operation of the collective
agreement.  Clause 4.1 provided that
the collective agreement commenced on 1 February 2018 in respect of
the parties thereto.
In respect of non-parties, clause 4.2
provided that the collective agreement would operate from a date to
be determined by the
Minister of Labour.  The appellant adduced
no evidence to prove that the Minister of Labour had indeed
determined the date
when the agreement became operative in respect of
non-parties.  For that reason, it cannot be found that the
collective agreement
came into operation in respect of non-parties,
like the appellant.
[21]
Clause 23 of the
Labour Relations Act 66 of 1995
provides for the
legal effect of collective agreements.
Section 23(1)
and (3)
reads as follows:
‘
(1)
A
collective agreement
binds–
(a)
the parties to the
collective
agreement
;
(b)
each party to the
collective
agreement
and the members of
every other party to the
collective
agreement
, in so far as the
provisions are applicable between them;
(c)
the members of a registered
trade
union
and the employers who are
members of a registered
employers'
organisation
that are party to
the
collective agreement
if
the
collective agreement
regulates-
(i)
terms and conditions of employment; or
(ii)
the conduct of the employers in relation
to their
employees
or the conduct of the
employees
in relation to their employers;
(d)
employees
who are not members of the registered
trade
union
or
trade
unions
party to the agreement if–
(i)
the employees are identified in the
agreement;
(ii)
the agreement expressly binds the
employees; and
(iii)
that
trade
union
or those
trade
unions
have as their members the
majority of
employees
employed by the employer in the
workplace
.
(2)
. . .
(3)
Where applicable, a
collective
agreement
varies any contract of
employment between an
employee
and employer who are both bound by the
collective
agreement
.
’
[22]
In terms of
section 23(1)
(d)
, for a collective agreement to
bind an employee who is not a member of the registered trade unions
party to that collective agreement,
three conditions have to be
fulfilled.  The first condition is that the employees must be
identified in the collective agreement.
In this case the
employees who were identified in the collective agreement were
‘employees who fall within the registered
scope of the
SALGBC’.  As pointed out above, the appellant failed to
establish that he fell within the registered scope
of the SALGBC.
The second condition is that the collective agreement must expressly
bind the employees.  Employees referred
to in
section
23(1)
(d)
(ii) are those employees who are not members of the
registered trade union parties who are nevertheless bound by the
collective
agreement, by virtue of them falling in the registered
scope of the SALGBC.  Employees are not bound by the collective
agreement
if they do not fall in the registered scope of the SALGBC.
It has been not established that the appellant fell within that

scope.  The third condition is that the members of the trade
unions which concluded the collective agreement with the municipality

must be the majority of employees and employed by the municipality in
the workplace.  There was no evidence that members of
IMATU and
SAMWU were the majority of employees employed by the municipality in
the workplace.  In the circumstances, the appellant
has failed
to establish the fulfilment of any one of the three conditions.
In the circumstances, he did not establish that
the collective
agreement was binding on him.
[23]
Since the appellant failed to prove a factual basis for ‘reading
the collective agreement
with the employment contract’, it must
be found that he failed to prove that the employment contract
contained an implied
term that entitled him to a hearing before the
municipality terminated the employment contract.  The appellant
failed to satisfy
the requirements of the test for impliedly or
tacitly importing a term into the employment contract that entitled
him to a hearing
before the municipality terminated the employment
contract.  It is accordingly found that the employment contract
did not
contain a term that entitled the appellant to a hearing
before the municipality terminated the employment contract.
[24]
The second issue to be determined is whether the municipality was, in
the words of the
appellant, ‘entitled to abruptly terminate the
employment relationship and without following a fair procedure’.

The appellant elected to frame his claim in contract.  He relied
on
section 77(3)
of the
Basic Conditions of Employment Act 75 of
1997
, which provides that the Labour Court has concurrent
jurisdiction with the civil courts to hear and determine any matter
concerning
a contract of employment, irrespective of whether any
basic condition of employment constitutes a term of that contract.
The appellant expressly disavowed reliance on the
Labour Relations
Act and
the remedies provided therein.  His claim was
accordingly not that the municipality unfairly terminated his
services when
it informed him that the employment contract was
terminated with immediate effect without giving him two weeks’
notice.
He can accordingly not complain about the alleged
unfairness of the procedure followed.
[25]
In terms clause 17.3 of the employment contract, once the
municipality has terminated the
employment contract on any of the
bases contained therein, the appellant was entitled to two weeks’
written notice in terms
of clause 17.3.2.  His entitlement to
notice arose
ex contractu
.  The appellant was accordingly
entitled to two weeks’ written notice, during which period he
was required to perform
his duties in exchange for his salary and
other benefits.  In the event of the municipality failing to
give notice in terms
of clause 17.3.2, the appellant was entitled to
be paid his salary and other benefits for the two-week period after
the termination
of the employment contract.  In this case, the
municipality terminated the employment contract with immediate
effect.  The
appellant did not perform his duties during those
two weeks because the municipality elected not to insist on this, but
placed
him in the same position in which he would have been had he
served the two weeks’ notice period by paying him the
remuneration
to which he was entitled for those two weeks.
Since the appellant received such remuneration, he had no cause for
complaint
in that regard.
[26]
The third issue is whether the mayor or the municipality’s
executive director of
corporate services, the fourth respondent, had
the authority to terminate the employment contract.  The
appellant relied on
the provisions of
section 55(1)
(g)
and
(h)
of the
Local Government: Municipal Systems Act 32 of 2000
for the
contention that only the municipal manager of the municipality, the
second respondent, is responsible and accountable for
the maintenance
of discipline of staff and the promotion of sound labour relations
and compliance by the municipality with applicable
labour
legislation.
[27]
The evidence that the appellant placed before the court in his
founding affidavit shows
that on 8 June 2022 the mayor addressed a
memorandum to the municipal manager wherein she complained about the
appellant’s
behaviour at the restaurant.  She informed the
municipal manager that her office should not be a place where women
feel unsafe
and that her office could not employ an individual who
contributed to such despicable acts of violence.  She also drew
attention
to the fact that the appellant had previously indicated his
lack of support towards her.  It was against that background
that
the mayor instructed the municipal manager to terminate the
employment contract.  On that same day a letter was addressed to

the appellant by the fourth respondent, wherein he notified the
appellant that the employment contract was terminated with immediate

effect.  In a letter dated 10 June 2022 by the fourth
respondent to the appellant, he was informed that, although the

termination of the employment contract was effective from 8 June
2022, he would ‘be compensated for a period of two
weeks in
lieu of a notice period as stipulated in clause 17.2.2
sic
of
your contractor under the heading ‘termination of contract’.
The fourth respondent, acting on the instructions
of the second
respondent, who, in turn who would have acted on behalf of the
municipality, terminated the employment contract.
It is, in my
view, immaterial who, on behalf of the municipality, terminated the
employment contract, which required the municipality
to terminate the
employment contract.  The employment contract was accordingly
terminated, on behalf of the municipality,
in terms of the employment
contract.
[28]
In the circumstances, the appellant has failed to show firstly, that
he was entitled to
a hearing prior to the termination of the
employment contract; secondly, that the municipality was not entitled
to abruptly terminate
the employment contract; and thirdly, that only
the second respondent had the authority to terminate the employment
contract.
The appeal must accordingly be dismissed.
[29]
At the commencement of the hearing of the appeal, the court was
required to consider the
appellant’s application to adduce new
evidence and to amend his notice of motion in terms of such new
evidence, if allowed.
The effect of the new evidence was that
the municipality terminated the mayor’s services on 21
September 2022.  The
effect thereof was that, if the appeal was
upheld, the appellant would have been entitled to payment of his full
salary and other
benefits from the date of the termination of the
employment contact to 21 September 2022, when the mayor’s
services were
terminated.  The respondents gave notice of their
intention to apply for the striking out of various paragraphs from
the appellant’s
affidavit which was used in support of the
application to adduce new evidence, primarily because those
paragraphs are repetitive
and deal with the merits of the appeal.
[30]
In my view, it was necessary for the appellant to inform this court
of the developments
of 21 September 2022, since the mayor was still
employed by the municipality when the application was heard by the
court
a quo
.  Whether it was necessary to make an
application based on a 17-paged affidavit with a 14-paged annexure is
debatable.
There was accordingly merit in the respondents’
criticism of the way in which the appellant sought to inform this
court of
the developments of 21 September 2022.  Despite
such criticism, I would nevertheless grant the application to admit
the
evidence that the mayor’s services were terminated on 21
September 2022 and allow the amendment that the appellant sought
in
respect of the notice of motion to reflect that he no longer sought
an order that he be reinstated, but an order that the municipality

pay his full salary and other benefits until 21 September 2022.
It would, in the circumstance, be appropriate for each party
to pay
his, her or its own costs occasioned by the application to adduce new
evidence and the application to strike out certain
paragraphs in the
affidavit used in support of the application to adduce new evidence.
[31]
Regarding the costs of the appeal, both parties employed the services
of two counsel in
the court
a quo
.  Before us Mr Ndamase
appeared alone, albeit that the appellant’s heads of argument
were prepared by two counsel.
Two counsel appeared before us on
behalf of the respondents.  It appears to have been a necessary
precaution.
[32]
In the result, it is ordered that:
32.1.
The appellant’s application to lead new evidence be and is
hereby granted.
32.2.
Each party shall pay his, her or its own costs occasioned by the
application to adduce new evidence
and the application to strike out
certain paragraphs in the affidavit used in support of the
application to adduce new evidence.
32.3.
The appeal is dismissed.
32.4.
The appellant shall pay the respondents’ costs of the appeal,
such costs to include the costs
of two counsel, where so employed.
________________________
GH
BLOEM
Judge
of the High Court
I
agree.
_________________________
JGA
LAING
Judge
of the High Court
I
agree.
_________________________
ZZ
MATEBESE
ACTING
Judge of the High Court
Appearances
For
the appellant:    Mr B Ndamase,
instructed
by Mgangatho Attorneys, Makhanda.
For
the respondents:   Ms N Msizi with Ms M Pango,
instructed
by McWilliams and Elliot Inc, Gqeberha and NN Dullabh Attorneys,
Makhanda.
Date
of hearing:  4 September 2023.
Date
of delivery of judgment: 19 September 2023.
[1]
Old
Mutual Ltd and Others v Moyo and Another
(2020)
41 ILJ 1085 (GJ) para 67.
[2]
South
African Maritime Safety Authority v McKenzie
2010 (3) SA 601
(SCA) para 43.
[3]
SA
Municipal Workers Union obo Tswaing Local Municipality and Others
(2022)
43 ILJ 2754 (LAC) para 15.
[4]
McKenzie
above n 2 para 11.
[5]
City of
Cape Town (CMC Administration) v Bourbon-Leftley and Another NNO
2006 (3) SA 488
(SCA) para 19.
[6]
E
C Chenia and Sons CC v Lamé and van Blerk
[2006] ZASCA 10
;
2006
(4) SA 574
(SCA) par 8.