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[2023] ZAECELLC 34
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Manjingolo v Amathole District Municipality and Others (EL1481/2023) [2023] ZAECELLC 34 (9 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT]
CASE
NO.: EL1481/2023
In
the matter between: -
LUBABALO
MANJINGOLO
Applicant
and
AMATHOLE
DISTRICT MUNICIPALITY
1
st
Respondent
THE
MUNICIPAL MANAGER: AMATHOLE
DISTRICT
MUNICIPALITY
2
nd
Respondent
N.
ZENGETHWA
3
rd
Respondent
MEC
FOR COOPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS, EASTERN CAPE
PROVINCE
4
th
Respondent
JUDGMENT
NORMAN
J:
[1]
The applicant moved court on an urgent basis seeking the following
orders:
“
1.
Condoning the applicant’s non-compliance with the Uniform Rules
of Court relating
to forms, timeframes and service;
2.
Granting the applicant leave to bring this application by way of
urgency in accordance
with the provisions of the applicable rules of
the Uniform Rules of this Court;
3.
Directing that the application be heard as one of urgency in terms of
rule 6(12)
of the Uniform Rules of Court;
4.
Granting the applicant leave to use form 2 of the Uniform Rules of
Court;
5.
Issuing of rule nisi calling upon the respondents to show cause, if
any, on 10
October 2023 at 09:30 or soon thereafter as the matter may
be heard why an order in the following terms should not be made
final:
5.1
declaring the first and/or second respondents’ decision to bar
the applicant from
performing the functions of chief financial
officer with effect from 01 September 2023 to be unlawful and in
breach of the contractual
agreement between the applicant and the
first respondent;
5.2
directing the first and second respondents to forthwith take all
necessary steps to ensure
that the applicant discharges the duties of
the chief financial officer in accordance with contractual agreement
between the applicant
and the first respondent which was concluded on
19 July 2023 within 24 hours of the order sought being granted;
5.3
directing the first and/or second respondents to give full effect to
the contract concluded
between the applicant and the first respondent
on 19 July 2023 within 24 hours of the order sought being granted;
5.4
directing the first and/or second respondents to take all the
necessary steps to ensure
that the applicant is loaded onto the first
respondent’s employment payment system within 24 hours of the
order sought being
granted;
5.5
directing the first and/or second respondents to permit the applicant
to discharge the functions
of chief financial officer with immediate
effect within 24 hours of the order sought being granted;
5.6
interdicting and restraining the first and/or second respondents from
–
5.6.1
appointing the third respondent to the position of chief financial
officer;
5.6.2
concluding any contract of employment with the third respondent for
the position of chief financial
officer;
5.6.3
granting the third respondent permission to perform the functions of
chief financial officer;
5.7
that, in the event of the third respondent having been appointed as
chief financial officer,
the third respondent be interdicted from
discharging the functions of chief financial officer within the
establishment of the first
respondent;
5.8
directing the first and/or second respondents to pay the costs of
this application and the
third respondent to pay costs of this
application, together with the first respondent, jointly and
severally, the one paying the
other to be absolved,
only in the
event of the third respondent opposing this application
;
5.9
as to such further and/or alternative relief as this Court may deem
grant;
6.
directing those paragraphs 5.2 to 5.7 of the rule nisi shall operate
as an interim
interdict/mandamus pending the finalization of the
application;
7.
directing the second respondent to deliver an affidavit confirming
that he and
the first respondent have complied with paragraphs 5.2 to
5.7 of the rule nisi within 24 hours of such compliance;
8.
directing the first respondent to pay the costs of this application
and the second
and third respondents to pay the costs of this
application, together with the first respondent, jointly and
severally, the one
paying the other to be absolved, only in the event
of the second and third respondents opposing this application; and
9.
as to such and/or further alternative relief as this Court may deem
grant.”
[2]
Applicant cited as the first respondent the Amathole District
Municipality (‘the municipality’),
the municipal manager
as second respondent and Mr N. Zengethwa who was interviewed for the
same position of Chief Financial Officer
(CFO), as third respondent.
After the institution of the application and after a point of
non-joinder was taken by the respondents
the applicant further
applied on an urgent basis to have the MEC for Cooperative Governance
and Traditional Affairs, Eastern Cape
Province (“the MEC”)
joined as the fourth respondent. The joinder application was not
opposed by the municipality and
the municipal manager. On 22
September 2023 the MEC was joined as a party to the proceedings in
terms of the order that was issued
by Zilwa J. The main
application was thereafter opposed by the municipality and the
municipal manager (“the respondents”).
The
MEC simply filed a notice to oppose on 4 October 2023 but did not
file any answering affidavit.
Relevant
facts
[3]
It is common cause that during May 2023 the municipality advertised a
vacant position for a CFO.
It received applications from various
applicants including the applicant herein and Mr Zengethwa. The
applicant was interviewed
for the position on 20 June 2023. The
municipal manager, Dr Mthembu, formed part of the interviewing panel
as a chairperson.
It
is also common cause that towards the end of the applicant’s
interview, the municipal manager enquired from the applicant
whether
he had anything to disclose to the panel. The applicant alleged that
he disclosed to the panel that he had a pending criminal
court case
which emanated from March 2018. This allegation is denied by the
respondents. The applicant further alleged that the
municipal manager
commented that that issue should not affect his employability since
it was a pending case. The applicant further
stated that the reason
he disclosed this information to the interview panel was because he
was mindful that as a CFO, issues that
pertain to fraud are directly
relevant to the functions of a CFO. He contends that after he had
made a disclosure it was up to
the interview panel to request
specific information but it failed to do so. He also stated that at
the time he had already left
the Mnquma Local Municipality and was a
CFO of the Amahlathi Local Municipality.
[4]
On 14 July 2023 the municipal council resolved to appoint the
applicant as the CFO. On 19 July
2023 the municipal manager informed
the applicant of his appointment. He accepted the appointment and
indicated that he would commence
discharging his duties on 1
September 2023. He contends that upon acceptance of that appointment
a binding enforceable contract
of employment came into existence
between him and the municipality. He stated that on 19 July
2023 he gave notice of his
intention to resign from Amahlathi Local
Municipality. The last day of employment at Amahlathi Local
Municipality was 31 August
2023.
[5]
When he attended the offices of the municipal manager on 1 September
2023, he received a letter
from the municipal manager informing him
that the MEC requested the municipal council to reconsider and set
aside his appointment
based on the allegations of misrepresentation
of certain facts. Those facts involved allegations that he failed to
disclose a pending
fraud and corruption case. He further advised him
that the municipality was awaiting a legal opinion on the issue and
advised the
applicant not to commence duty on 1 September 2023.
[6]
The applicant contends that the MEC is not his employer. His
attorneys of record wrote to the
MEC and to the Mayor with the
intention of persuading them to reverse their decision that he should
not assume duty. He sent a
WhatsApp message to the municipal manager
indicating to him that because he was not rendering any services he
was at risk of not
receiving a salary for the month of September
2023. He indicated to him that should he not receive an undertaking
that he would
be paid at the end of the month, he would be left with
no option but to approach court. There was no response to the
message.
[7]
He received a letter from the legal representatives of the
municipality to the effect that the
applicant had misrepresented
facts by not disclosing the pending criminal case and that no
undertakings would be made in relation
to his salary. He alleged that
the municipality had breached the contract that it had with him.
[8]
On 6 September 2023 applicant’s attorneys, Bam Attorneys Inc.
addressed a letter directly
to the Executive Mayor suggesting that
his instruction to the municipal manager was irregular and unlawful
and fell to be set aside.
They demanded that the mayor should retract
his unlawful instruction to the municipal manager on or before 8
September 2023 and
that their client should be allowed to assume duty
on Monday, 11 September 2023 otherwise they would approach court for
appropriate
relief.
[9]
On 11 September 2023 another firm of attorneys, Msitshana Attorneys,
who are now the applicant’s
attorneys of record addressed a
letter to the municipal manager and Head of Legal Services of the
Amathole District Municipality.
[10]
In the letter it is recorded that
“
no explanation
whatsoever was offered as a reason for him not to report for duty.
This is a clear violation of the contractual obligation as a
binding contract was entered between the municipality and our
client.”
(my underlining)
[11]
They threatened that a review would be brought to court should they
not receive an undertaking that
their client would receive a salary
at the end of September 2023.
[12]
On 12 September 2023 the municipality’s attorneys responded and
indicated that reasons were advanced
in the municipality’s
letter of 30 August 2023. They informed him that an investigation was
underway to investigate the allegations
that their client
misrepresented material facts in the application form. They indicated
that no undertaking would be given until
the investigations were
concluded. The following day the applicant launched these proceedings
on an extremely urgent basis.
[13]
The municipal manager deposed to an answering affidavit on behalf of
the municipality. He raised, amongst
others, urgency, non-joinder and
failure to meet the requirements of an interdict, as preliminary
points. As indicated the
issue of non-joinder of the MEC has
since been cured. He stated that when a letter of appointment was
sent to the applicant, it
was indicated therein that the effective
date would be from 1 August 2023. When the applicant accepted the
offer he elected to
commence employment on 1 September 2023. On 6
August 2023, notwithstanding the council’s resolution and the
above letter
of appointment, an internal memorandum was compiled for
the attention of the Head of Department, Cooperative Governance and
Traditional
Affairs advising him about the appointment of the
applicant as the CFO.
[14]
In an internal memorandum prepared by Mr V Mlokoti, the Deputy
Director-General: Developmental Local Government,
it was recommended
that the MEC should not support the decision of the council in
appointing the applicant as CFO because he misrepresented
facts in
the application form with regard to a pending fraud and corruption
case.
[15]
It was recommended that the MEC should advise the council to consider
the appointment of the second-best
recommended candidate. On 31
August 2023 the MEC approved the recommendations which were set out
in the internal memorandum. On
the same day the MEC wrote to the
Executive Mayor of the Council, Mr A. Ntsangani regarding the
appointment of the applicant. He
advised him that he did not support
the decision of the council to appoint the applicant. He reiterated
what was contained in the
internal memorandum in relation to the
alleged misrepresentation of facts.
[16]
The municipal manager communicated these developments to the
applicant. As a result, he requested the applicant
not to commence
with employment on 1 September 2023 until correspondence had been
addressed to him by his office. On 7 September
2023 there was going
to be a special council meeting for the consideration of the
instructions issued by the MEC to it. In preparation
for that council
meeting the municipal manager prepared a report which contained,
inter alia:
“
5.
The Employment Regulations inter alia prescribe that in an
application for the vacant post of a senior manager (the
post of CFO
being a senior management position) a candidate must disclose his or
her academic qualifications, proven experiences
and competencies;
contactable references and full details of any dismissal for
misconduct or any disciplinary action whether pending
or finalized
instituted against him or her in his or her current or previous
employment.
6.
Before deciding on an appointment the council
must satisfy itself that the candidate meets the relevant competency
requirements
for the post, that the screening of the candidate has
been conducted and that the candidate does not appear on the record
of staff
members dismissed for misconduct or have a criminal record.
7.
Once an appointment has been made the council
must submit a written report to the MEC for local government in the
province containing,
inter alia, a report on the screening process
and the outcome thereof and competency assessment results.
8.
The minimum competencies set out in annexure
“A” to the Employment Regulations include “Moral
Competence”
which is defined as “the ability to identify
moral triggers, apply reasoning that promotes honesty and integrity
and consistently
display behavior that reflects moral competence. The
‘competent’ achievement level includes the requirement to
‘actively
report fraudulent activity and corruption within
local government;’ the ‘advanced’ achievement level
requires
the candidate to take an active stance against corruption
and dishonesty when noted and the superior level requires a candidate
to ‘set integrity standards and shared accountability measures
across the institution.”
[17]
A special council meeting was held on 7 September 2023. On 8
September 2023 the executive mayor reported
to the MEC the outcome of
the special council meeting. The council had resolved to give the MEC
more information about the declaration
of the pending fraud and the
corruption case by the applicant; to inform the MEC about the verbal
disclosure made by the applicant
during the interviews and to seek a
legal opinion. The council further resolved to convene another
special council meeting within
seven days pending the response of the
MEC.
[18]
In this regard, the municipal manager dealt with the application form
completed by the applicant. He stated
that under the disciplinary
record section the question is:
‘
Have
you been accused of an alleged misconduct during the past ten(10)
years and have resigned from your job pending the finalisation
of the
disciplinary proceedings
? Under the
subheading of the criminal record the following is stated:
“
Have
you been convicted of any criminal offence in a court of law during
the past ten (10) years?”
The
applicant answered
‘
NO’
to both questions.
[19]
In section E of the application form an applicant is required to
provide work experience. The section provides
as follows:
‘
If
you were previously employed in the local government indicate whether
any condition exists that prevents your re-employment.
If yes,
provide the name of the previous employing municipality’.
The applicant answered
‘
NO’
to both questions. As a result, he did not provide
the name of the previous municipality that was his employer. The
applicant also
signed a declaration to the effect that he understood,
among others that, ‘
any
misrepresentation or failure to disclose any information may lead to
his disqualification or termination of his employment contract
if
appointed’.
He also raised the
issue that the applicant
did
not use the prescribed form but used a different form.
[20]
In dealing with lack of urgency, he contended that the applicant
failed to explain why he cannot be afforded
substantial relief at a
hearing in due course. He further stated that the applicant does not
explain why the normal unfair dismissal
route of referring the matter
to the bargaining council is not open to him. He submitted that
urgency is self-created and the application
should fail on this
basis.
[21]
The municipality contends that nowhere in the affidavit has the
applicant dealt with the requirements that
must be satisfied when one
seeks an interdict. It stated that on this basis alone the
application must fail.
The
municipality admitted that a letter of appointment was given to the
applicant but denied that a binding and enforceable contract
came
into existence. It further contended that the applicant did not
meet the moral and core competencies provided for in
the Local
Government: Regulations on Appointment and Conditions of Employment
of Senior Managers
[1]
.He
further stated that because the applicant was appointed without
meeting the competencies, the provisions of section 56
(1) (b) are
triggered and they render the decision to appoint him null and void.
It further contends that due to the challenges
that the
municipality has in relation to service delivery, it is imperative
that an honest CFO who is not facing criminal charges
involving
financial misconduct, fraud and corruption, be appointed.
[22]
In reply, the applicant contends that he simply wishes to enforce the
terms of the contract. He contends
that if the MEC was of the view
that the appointment was contrary to the Municipal Systems Act, he
should have, in terms of section
56(6) thereof, approached court to
seek declaratory relief and challenge the validity of the
appointment. He failed to do
so and on that basis the applicant
contends that he is entitled to enforce compliance with the contract.
In reply, the applicant
stated for the first time that the MEC was
aware of the charges against him. I shall deal with this issue later
on.
Legal
submissions
[23]
Mr Miller appeared for the applicant and Mr Nhlapo for the
respondents. Mr Miller submitted that: This
court had
raised the issue of jurisdiction
mero
motu
with
reference to the decision in
Chirwa
v Transnet
Limited
[2]
.
He argued that this court must adjudicate this matter in line with
the practice of this Division in similar matters. He urged
this court
to hear the matter. He relied on
Fredericks
v MEC for Education and Training Eastern Cape and Others
[3]
for
the submission that
section 157
of the
Labour Relations Act 66 of
1995
, as amended, has the effect of depriving the High Court of
jurisdiction in matters that the Labour Court is required to decide
except where the Labour Relations Act 66 of 1995 (‘the LRA’)
provides otherwise.
[24]
In
Chirwa
[4]
a distinction is drawn between a scenario where reliance is placed
upon a violation of the provisions of the LRA and a scenario
such as
in Fredericks (and in this matter) where a litigant does not place
such reliance. The applicant seeks specific performance
and
expressly places reliance on the enforcement of a contract between
the parties. In this regard he relied on
Fedlife
Assurance Ltd v Wolfaardt
[5]
and
on
Makhanya
v University of Zululand
[6]
.
[25]
In dealing with urgency, he argued that the
timetable set out by the applicant in the notice of motion was
commensurate to the degree of urgency contended for by the
applicant. He relied on
Harvey
v Niland and Others
[7]
that
the applicant has a right to determine time periods in urgent
applications and the respondent must simply do the best he or
she
can, to comply with them. The applicant and his family will
suffer untold harm should he not receive his salary from
September
2023. He distinguished the facts of this case from those in
Matshidiso
v Chief Executive Officer- South African Social Security Agency and
Another
[8]
,
because
the applicant therein had waited for three (3) months before
instituting legal proceedings.
[26]
Mr Miller submitted that the matter is urgent
based on the fact that barring the applicant to take up employment
in
the circumstances of this case is unlawful. He submitted that the
applicant has made out a case for the relief sought. On the
issue of
costs, he submitted that the applicant is entitled to the costs of
the application and of the hearing of the matter.
Respondents
submissions
[27]
Mr Nhlapo submitted that the respondents were served with the
application on 13 September 2023 and had to
file their opposing
affidavits by 15 September 2023. The applicant afforded himself two
days to file a reply. He submitted
that there are no grounds
for urgency. He argued that it has been held by the courts that the
fact that one stands not to
be paid a salary does not on its own
establish urgency. In this regard he relied on
Tshwaedi
v Greater Louis Trichardt Transitional Council
[9]
.
[28]
He submitted that there is no case made out for an
interdict. On the issue of non-disclosure he submitted that
the
applicant in submitting his application did not use the prescribed
form as set out in annexure C to the Regulations on Appointment
and
Conditions of Employment of senior managers. He submitted that
the form completed by the applicant is silent on the envisaged
criminal conviction. According to the respondents this issue is
significant because the applicant is currently facing charges based
on financial misconduct, fraud, and corruption. He submitted
that even at the interview the applicant did not specify that
it was
a criminal matter that was pending let alone that it involved
financial misconduct, fraud and corruption.
[29]
He submitted that the applicant does not deserve
any assistance from the court because he misled the court
when he
created an impression in the founding affidavit that he disclosed to
the panel that the pending matter concerned
fraud. That
is not supported by the transcript.
[30]
He relied on
Eskom
Holdings Ltd v Fipaza and Others
[10]
for the contention that the applicant did not provide true, complete
and accurate information. He relied on
,
inter alia,
the
following remark:
“
A
party is expected to speak when the information he has to impart
falls within his exclusive knowledge (so that in a practical
business
sense the other party has him as his only source) and the
information, moreover, is such that the right to have it communicated
to him would be mutually recognized by honest men in the
circumstances.”
[11]
[31]
He submitted that as the position related to that
of a senior manager the applicant was ethically obliged
to disclose
the criminal charges against him. He further submitted that the
applicant lacks competencies prescribed in section
56 of the
Municipal Systems Act Amendment Act No.3 of 2022 and thus the
decision to appoint him is null and void. He
further
submitted that the MEC duly exercised her powers. He submitted
that the municipality has decided not to give effect
to the
appointment due to the misrepresentation. He asked for the
application to be dismissed with costs.
Discussion
[32]
It is worth recording that in the answering
affidavit the following was stated:
“
38.
It is trite that in employment related disputes, the fact that you
stand not to be paid a salary
does not on its own establish urgency.
In fact it has been held by the courts that it is well within the
contemplation of employment
law that such an unfortunate circumstance
would be attendant to an employee or former employee hence the
dispute resolution procedure.
39.
I further deny that Mr Manjingolo cannot be afforded substantial
relief at a hearing in
due course.
I see this premised upon the
fact that he does not
explain why the normal unfair dismissal
route of referring the matter to the bargaining council is not open
to him.
40.
More importantly Mr Manjingolo has preferred an expensive route thus
depleting the resources
that he claims he does not have. This is
rather a self-created inconvenience upon which he seeks to mount
urgency.”
(my emphasis)
[33]
The applicant did not put up any facts in the founding affidavit to
indicate that this court has jurisdiction
to hear the matter. It
was, among others, the underlined statement, above, that informed
this court to raise the issue of
jurisdiction. The applicant himself
had alluded to the fact that because of the allegations of non –
disclosure of certain
material facts the respondents should have
followed the labour dispute procedures. This court has been
persuaded by the applicant’s
counsel that it should hear the
matter because its jurisdiction is not ousted by the Labour Relations
Act 66 of 1995 (“the LRA”).
[34]
It was submitted on behalf of the respondents that this court should
dismiss the application because the
applicant does have the
alternative remedy of having the dispute referred to the bargaining
council. The difficulty with that argument
is that, although the
court is entitled to raise the issue of jurisdiction
mero motu
,
where the other party has not raised it clearly and unambiguously,
the court is constrained to dismiss the application based on
that
point . The reason for that is not far to find. A party
objecting to jurisdiction must do so right at the outset
and raise
the objection as a preliminary issue for determination. It must not
continue to defend the litigation only to raise its
voice on
jurisdiction when it is being raised by the court especially where
the issue to be decided is not placed in a “strait
jacket”
by the LRA.
This court, having received
argument both oral and written on this issue, is satisfied that its
jurisdiction is not ousted by the
LRA.
Urgency
[35]
The applicant contends that the matter is urgent
and in this regard he advanced the following reasons:
35.1
He was last paid his salary by Amahlathi Local
Municipality on 25 August 2023;
35.2
He has financial obligations that he has to meet
such as a bond, motor vehicles, school fees, groceries for his two
children, medical
aid, investment policies, fuel, water, electricity,
rates and taxes;
35.3
The municipal manager refused to give him an
undertaking that his salary would be paid for the month of September
2023;
35.4
His salary received on August 2023 would only last
until September 2023;
35.5
He has a binding agreement and a right to demand
performance from the other party; and
35.6
He has a right to demand his duties as the CFO as
a matter of urgency in order to receive his September 2023 salary.
[36]
Rule 6(12) (b) of the Uniform Rules of Court
provides that in every affidavit or petition filed in support
of any
application under paragraph (a) of this subrule, the applicant must
set forth explicitly the circumstances which render
the matter urgent
and the reasons why the applicant claims that he would not be
afforded substantial redress at a hearing in due
course
[12]
.
[37]
The applicant was advised about the MEC’s
instruction to the Council on 1 September 2023. He
called upon
the municipality to indicate by 10h00 on 4 September 2023 when he
could attend work. He launched the application on
the 13 September
2023, some 9 days later. By his conduct he had agreed that
another date would be set for him to commence
work. Most
importantly, in Annexure “LM6”, he stated amongst others:
“
1.
You have indicated in your letter that the Executive Mayor instructed
you to write to me to indicate that I must not attend work
today.
2.
With due regard to the fact that you are my superior
I
have agreed to not attend work today on the 1
st
September
2023
.”
(my underlining).
[38]
In a letter by his erstwhile attorneys, Bam Incorporated, it was
demanded of the municipality to “
allow
the applicant to assume duties on Monday, 11 September 2023”.
[39]
It must have dawned on the applicant that whatever steps
he took would be opposed by the respondents. He
decided to give the
respondents less than two days to file their answering affidavits. He
gave himself two days to deliver his
replying affidavit. The
application was set down on 10 October 2023 and yet the whole basis
for its urgency was the September salary.
The relief sought is based
on the events of 1 September 2023. The applicant even stated:
“
I
am faced with the real threat that I shall not receive my salary for
the month of September 2023.”
The
interdictory relief was sought after that date on 10 October 2023.
By that time the matter had served before Zilwa
J for
determination of the joinder application. It is trite that an
interdict is not a remedy for the past invasion of rights
[13]
.
Lack of urgency alone ought to put an end to this matter. However,
there are certain matters that should be addressed in this
judgment.
Enforcement
of the contract relief
[40]
Mr Miller equated the relief sought to specific performance. The
applicant contends that he is enforcing
the contract that he has with
the municipality. One needs to have regard to the letter of
appointment and assess whether
the
letter of appointment constitutes a contract of employment that is
capable of enforcement by this court. That assessment cannot
be done
in abstract it must refer to the uncontested facts for context.
[41]
The letter of appointment reads:
“
. . . . . . .
Dear Mr Manjingolo
RE: APPOINTMENT
TO THE POSITION OF CHIEF FINANCIAL OFFICER
It
is with great pleasure to inform you that you have been appointed to
the position of Chief Financial Officer.
The
appointment will be effective from 1 August 2023
.
You shall be required to conclude your
contract of employment with the municipality before the effective
date of your appointment.
The remuneration and other conditions of
service will be negotiated between you and the municipal manager when
concluding the contract
of employment.
The council wishes to congratulate you on your
new position and hoping to have a long and mutually beneficial
relationship with
you.
(my emphasis)
Yours sincerely
BJ Mthembu (Dr)
Municipal Manager
19 July 2023.”
[42] In
accepting the offer this is what the applicant stated:
“
ACCEPTANCE
OF AN OFFER
I, Lubabalo Manjingolo
accept the position offered to me and
will commence duties on 1
September 2023. I confirm undertaking to read the policies referred
to in this letter and irrevocably
undertake to abide by the
stipulations, terms and conditions contained in such policies.
Signed
19 July 2023.”
[43]
Nowhere in the founding affidavit has the applicant contended that
subsequent to him receiving the appointment
letter a contract of
employment was concluded between the parties as contained in the
offer to him. Secondly, nowhere has the applicant
stated that the
remuneration and other conditions of service were indeed negotiated
between him and the municipality or the municipal
manager and had
thus concluded a contract of employment.
[44]
According to the letter of appointment, a contract of employment had
to be concluded before the effective
date, namely, 1 August 2023. The
applicant does not state that he concluded one before that date.
This court does not have
a signed agreement or contract before
it as envisaged in the letter of appointment. None of the
parties have dealt
with the material terms of the alleged contract.
So, the question is, how does a court enforce a contract of
employment that does
not exist? That is the first difficulty.
[45]
There is another difficulty. The offer that was made to the applicant
gave the applicant an effective date
being the 1
st
of
August 2023. The applicant in accepting the offer elected his own
date, being, the 1
st
of September 2023. That, in my view,
amounted to a counter - offer to the municipality.
[46]
Professor Christie states that it is usually regarded as equally
axiomatic that a counter- offer incorporates
a rejection and
therefore destroys the original offer.
[14]
I have not seen any document that evinces that there was agreement
that the applicant was going to commence work on the 1
st
of September 2023
instead of the 1
st
August 2023. This
issue is dealt with in paragraph 13 of the answering affidavit where
the municipal manager stated the following:
“
13.
On 19 July 2023 the ADM through my office informed Mr Manjingolo per
letter dated 18 July 2023
that he has been appointed to the position
of CFO. Further that his appointment would be effective from 1 August
2023. When accepting
the offer of employment,
Mr
Manjingolo elected to commence employment on 1 September 2023.
See annexure “LLM4” attached to
the founding affidavit.” (my emphasis)
[47]
The relief sought by the applicant is based on enforcement of
contractual agreement between the applicant
and the first respondent
which was concluded on 19 July 2023. As aforementioned the only thing
is the letter of appointment that
had a counter- offer to it. One
must have regard to the method of interpretation to be adopted when
one is confronted with the
letter of appointment and the acceptance
letter, as informed by the principles adopted in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[15]
.
Wallis
JA stated:
“
[18]
. . . The present state of the law can be expressed as follows:
Interpretation is the process of attributing
meaning to the words
used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the
context provided by
reading the particular provision or provisions in the light of the
document as a whole and the circumstances
attendant upon its coming
into existence. Whatever the nature of the document, consideration
must be given to the language used
in the light of the ordinary rules
of grammar and syntax, the context in which the provision appears,
the apparent purpose to which
it is directed and the material known
to those responsible for its production. Where more than one meaning
is possible each possibility
must be weighed in the light of all
these factors. The process is objective not subjective.”
[48]
I accordingly find that the letter of appointment given the text
thereof and the plain language used therein,
was a preliminary
document which preceded any contract of employment that was to be
concluded between the parties.
[49]
My conclusion in this regard is fortified by, amongst others, a
letter addressed to the applicant on 30 August
2023, by the municipal
manager informing him about the correspondence addressed to the
office of the Executive Mayor by the MEC.
In that letter there are
two issues that are dealt with therein which relate to the finding I
made earlier in relation to the letter
of appointment. They are:
“
In
the correspondence you were informed that your appointment shall be
effective from the 1
st
of
August 2023.
A contract of employment was to be
concluded prior to the date of your appointment which contract was to
deal with the conditions,
remuneration between yourself and the
municipality. . .
(my emphasis).
Based on the aforesaid we
request you not to commence your employment on the 1
st
of September 2023 till a correspondence has been addressed to you
by our office. Should you have queries or wish to make further
discussion do not hesitate to contact my office.”
This, to
me, further demonstrates that the respondents were still adhering to
the original offer even though there was the counter-offer
by the
applicant as aforementioned.
[50]
The other difficulty relates to the effective date of 1
st
August 2023. In the offer the applicant was advised: “
You
shall be required to conclude your contract of employment with the
municipality before the effective date of your appointment.
The
remuneration and other conditions of service will be negotiated
between you and the municipal manager when concluding the contract
of
employment.”
In his acceptance the applicant accepted only
the position offered to him. He went further and stated
:
“
I confirm
undertaking to read the policies referred to in this letter and
irrevocably undertake to abide by the stipulations, terms
and
conditions contained in such policies.”
[51]
Nowhere in the offer is an undertaking sought from the applicant to
read the policies and to abide by the
stipulations contained therein.
According to the offer, a contract of employment had to be concluded
before the effective date
of appointment, namely, before 1 August
2023. The terms and conditions
,
remuneration and other
conditions of service were to be negotiated between applicant and the
municipal manager when concluding the
contract of employment. The
founding affidavit is silent on these material conditions of
contract. Instead a bald statement is
made that there is a valid
contract between the applicant and the municipality. The
applicant’s counsel submitted that
this court must focus only
on what the applicant seeks, namely, enforcement of the contract.
[52]
Accepting for a moment that the letter of appointment constitutes a
full contract between the parties, the
inconsistencies between what
is contained in the offer and the acceptance letter make it difficult
for this court to find that
there was a contract capable of
enforcement.
[53]
For instance, one of the orders sought is that the first and second
respondents
must be directed
to give
full effect to the contract concluded between the applicant and the
first respondent. Again, it is not possible for this
court to give
effect to a contract that it has not been placed in possession of.
It is not clear what the remuneration package
of the applicant
was going to be. It was clearly stipulated in the offer that
“
remuneration and other conditions of service”
were to be negotiated. The applicant has not even alluded to the
amount of his salary or remuneration. Based on these findings
and on
the facts, I find that there is no contract capable of enforcement as
prayed for by the applicant.
The
alleged non-disclosure of material facts
[54]
The respondents contend that there was non-disclosure of material
facts by the applicant both in his application
form and at the
interview. Professor Christie in the Law of Contract in South
Africa
[16]
states:
“
It remains as
true as ever that the object of the courts is to apply and where
necessary, to develop the law in order to achieve
justice. Justice
is, however, a broad concept, and it is helpful to have a more
sharply defined goal at which to aim. It will be
found that in many
(but of course not all), problem areas of the law of contract.
The
most satisfactory result can be achieved by enforcing contracts that
stem from true agreement or cause mutual assent, and by
not enforcing
contracts that do not conform to that pattern.”
(my underlining).
[55]
If this court were to enforce the letter of appointment it would be
compelling the respondents to ,
first , conclude an employment
contract with the applicant and second, disregard the
misrepresentation allegations and any investigations
that the
respondents are conducting, third, disregard the concerns of the
Deputy Director-General who raised concerns about the
appointment and
fourth, disregard the concerns of the MEC who is exercising a power
in terms
of section 56 (6) of the
Systems
Act and fifth, disregard the decision of the council to seek an
opinion, amongst others.
[56]
The MEC has a supervisory and enforcement role in
respect of permanent appointments made in terms of section
56 (1) (a)
and is not a passive observer to the appointment process. In
Notyawa
v Makana Municipality and Others
[17]
the
Constitutional Court held that Parliament entrusted the MEC with the
power to monitor compliance with the Systems Act.
The power to
monitor compliance is a necessary component of the relationship
between local government and other levels of government
who have a
duty to intervene when local government functions are in a defective
or deficient manner which compromises its autonomy
and integrity.
I
am satisfied that there is no justification in law for such
interference as it would cause the separation of powers harm.
[57]
The applicant in his founding affidavit stated the
following:
“
(ii)
INTERVIEW
24.
. . ..
25.
. . . ..
26.
At the end of the interview, I was asked by the second respondent, in
his capacity as the
chairperson on the interview panel, if I had
anything to declare.
27.
I informed the panelists and all present which included observers
from EMATU and SAMU
that there was
pending
in a criminal case against me.
The criminal case
emanated from March 2018
. At the time I had already left Mnquma
Local Municipality and was a CFO at Amahlathi Local Municipality. The
second respondent
commented that should not affect my employability
since it was a pending case.
28.
The reason I disclose this information to the interview panel is
because I am mindful that
as a CFO
, issues pertaining to fraud are
directly relevant to the job function of a CFO.
29.
It was reasonable to expect me to disclose at the interview, at the
minimum, that there
was a pending case against me before any
appointment was made, beyond this, it is up to the interview panel to
request further
information, this they did not do, and they had an
opportunity to do so and elected not to do so.”
(my
underlining).
[58]
The municipality attached to the answering affidavit by the municipal
manager a transcript of, amongst others,
the interview of the
applicant. The following is recorded which is relevant to the issue
at hand:
“
Chairperson:
Ok. Alright. Thanks so much.
And then any declaration?
Mr
Manjingolo:
. . . . . oh declaration, I think
it is important to disclose
the issue which would likely even be picked up through the vetting
process.
I have got a pending matter that is in court
. It has
been pending since 2018. I do not know how long it is going to remain
pending. I think it is important, even though
I do not think it is
a matter that affects my availability,
it is important for
disclosure purposes and for transparency that I disclose it.
Chairperson:
Ja, no for sure because
(indistinct).
Mr
Manjingolo:
Ja.
Chairperson:
Any questions from your
side?
Mr
Manjingolo:
That is all.”
(my emphasis)
[59]
That declaration is in stark contrast to the allegations made in the
founding affidavit. There is no
mention of fraud allegations in
the declaration. A pending matter could very well be a civil matter.
An impression was created
in the founding affidavit that the
applicant disclosed the pending fraud case against him. That is not
borne out by what is contained
in the transcript. The municipality
indicated that investigations are underway. It is not the applicant’s
case that the allegations
relating to fraud and corruption against
him have no bearing on the appointment. In fact, the applicant
himself stated that fraud
and corruption are relevant considerations
where one occupies a position of CFO. Notwithstanding that
concession the applicant
persists that this court must order the
respondents to comply with the ‘contractual agreement’.
[60]
Investigating these matters is in the interests of justice.
Allegations of misrepresentation of material facts relating to
fraud and corruption must be dealt with adequately and speedily,
especially where the applicant is to be tasked with the obligation
of, amongst others, handling public funds. This court does not know
what the investigations would yield. The applicant has not
made out a
case in the founding affidavit that the balance of convenience favour
halting those investigations. Instead, he tried
to make a case in
reply that the MEC was always aware of the fraud allegations. He
referred to correspondence dating back
to 10 January 2023 in support
of that contention. There is no explanation why that correspondence
was not relied upon in the founding
affidavit. For instance, the
applicant relied on,
inter alia,
correspondence given to him
by the municipal manager. He stated as para 46 of the founding
affidavit:
“
46. On 1
September 2023 I attended the office of the second respondent
where I received a letter from the second respondent
stating that the
MEC for Cooperative Governance and Traditional Affairs : Eastern Cape
( “ the MEC” ) had requested
the municipal council to
reconsider and set aside my appointment as there were facts that I
had made a misrepresentation in the
application form, more
particularly that I had failed to disclose a pending fraud and
corruption case…”
[61]
The applicant was clearly aware, when he deposed to the founding
affidavit that the MEC’s stance against
the appointment was
based on the alleged non-disclosure of the fraud and corruption
charges. He was clearly in possession of the
correspondence he relied
on in reply.
[62]
An applicant must make out his case in the
founding affidavit
[18]
by
setting out all the necessary allegations upon which he relies, as he
will not generally be allowed to supplement the affidavit
by adducing
supporting facts in a replying affidavit. Although this
is not an absolute rule, this court is not inclined
to exercise its
discretion in favour of the applicant who has failed to proffer an
explanation why this information was not dealt
with in the founding
affidavit. The MEC who has not filed an answering affidavit may have
dealt with the issue if it was raised
in the founding affidavit.
In any event, the extract and the letter relied upon in this regard
makes no mention of pending
fraud and corruption charges.
[63]
The respondents contend that there are investigations that are
underway.
Sections
151, 152 and 153 of the Constitution entrench the constitutional
sovereignty of the municipality and an interdict against
it must be
granted under exceptional circumstances and in the clearest of
cases.
[19]
The applicant has
failed to meet the
Plascon
Evans
standard
[20]
.
The respondents’ version and the reasons for commissioning the
investigations are explained and they are adequate enough
to be
accepted by the court. If the version of the respondents cannot
be rejected then it follows that the applicant cannot
succeed. The
version of the respondents created serious doubt on the applicant’s
version and the relief sought should be
refused.
[64]
The
Constitutional Court in
National
Treasury & Others v Opposition to Urban Tolling Alliance &
Others (OUTA)
[21]
held:
“
The
balance of convenience enquiry must now carefully probe whether and
to which extent the restraining order will probably intrude
into the
exclusive terrain of another branch of government. The enquiry must
alongside other relevant harm, have proper regard
to what may be
called separation of powers harm. A Court must keep in mind that a
temporary restraint against the exercise of statutory
power well
ahead of the final adjudication of a claimants case may be granted
only in the clearest of cases and after a careful
consideration
of separation of powers harm
.”
(my emphasis).
[65]
The Court must weigh up the damage and inconvenience which the
respondents would suffer if the interim interdict
is granted. And, on
the other hand, the damage and inconvenience which would be suffered
by the applicant if the interim order
is refused.
The
applicant’s fears of non – payment of his salary when
weighed up against the interests of justice, to have allegations
of
non-disclosure or misrepresentation of serious allegations of fraud
and corruption, investigated disappear into oblivion.
It
follows therefore that the application must fail. On these grounds,
the applicant has not made out a case for the relief that
he seeks.
[66]
On the issue of costs, I find that there is no
reason to depart from the rule that costs should follow the
result.
ORDER
[67]
I accordingly make the following Order:
The application is
dismissed with costs.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
Matter
heard on: 10 October 2023
Judgment
Delivered on: 09 November 2023
APPEARANCES:
For
the APPLICANT
ADV
MILLER
Instructed
by
MSITSHANA
INCORPORATED
6
ST. PATRICK’S ROAD
BELGRAVIA
EAST
LONDON
TEL:
043 722 0603
EMAIL:
msitshanaincorporated@telkomsa.net
admin@msitshanaincorporated.co.za
REF:
MR MSITSHANA/zandi
For
the 1
ST
& 2
ND
RESPONDENTS
ADV
NHLAPO
Instructed
by
MBALI
MAKELENI ATTORNEYS INC.
191
BEKKER ROAD
MIDRAND
TEL:
011 100 7632
EMAIL:
siya@mbalilaw.co.za
mtho@mbalilaw.co.za
REF:
ADM/2123
c/o
MAPHOSA
AND ASSOCIATES
30
CHAMBERLAIN ROAD
BEREA
EAST
LONDON
TEL:
043 721 0458
[1]
Local
Government: Regulations on Appointment and Conditions of Employment
of Senior Managers as published in GN 21 in GG 37245
dated 17
January 2014.
[2]
Chirwa v Transnet Limited
2008
(4) SA 367 (CC).
[3]
Fredericks
v MEC for Education and Training Eastern Cape and Others
2002
(2) SA 693 (CC).
[4]
Chirwa, supra, paras 59-61.
[5]
Fedlife
Assurance Ltd v Wolfaardt
2002
(1) SA 49 (SCA).
[6]
Makhanya
v University of Zululand
2010
(1) SA 62 (SCA).
[7]
Harvey
v Niland and Others
2016 (2) SA 436
(ECG) at para 19.
[8]
Matshidiso
v Chief Executive Officer- South African Social Security Agency and
Another
(J1175/2022)
[2022] ZALCJHB 365 (29 September 2022).
[9]
Tshwaedi
v Greater Louis Trichardt Transitional Council
[2000]
4 BLLR 469
(LC);
ECCAWUSA
v Southern Sun Hotel Interests (Pty) Ltd
[2000]4
BLLR 404 (LC) para 16.
[10]
Eskom
v Fipaza and Others
(JA 56/10) [2012]
ZALAC 40;
[2013] 4 BLLR 327
(LAC);
[2013] 4 BLLR 327
; (2013)
34 ILJ 549 (LAC) (3 October 2012);
Intercape
Ferreira Mainliner (Pty) Ltd v Mcwade and Others
(JR 158/17)
[2019] ZALCJHB 274; (2020) 41 ILJ 208 (LC);
[2020] 2 BLLR 199
(LC)
(18 September 2019).
[11]
Pretorius
and Another v Natal South Sea Investment Trust Ltd (under Judicial
Management)
1965 (3) SA 410
(W) at 418 E-F.
[12]
Mangala
v Mangala
1967
(2) SA 415(E)
at paras E-F where the Court found that the applicant
must either comply with the Rules in the normal way or make out a
case
for urgency in accordance with the provision of Rule 6 (12) (b)
and dismissed a spoliation application.
[13]
Goldstone JA in Phillip Morris Inc. and Another v Marlboro Shirt Co
SA Ltd and Another
1991 (2) SA 720
(AD) 735B.
[14]
Christie:
The Law of Contract, 8th Edition, page 67 para (f): Counter- offer.
[15]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
(920/2010)
[2012]
ZASCA 13
at para 18.
[16]
8
th
Ed
at page 2.
[17]
Notyawa
v Makana Municipality and Others
(CCT115/
18)
[2019] ZACC 43
;
2020 (2) BCLR 136
(CC);
[2020] 4 BLLR 337
(CC);
(2020) 41 ILJ 1069 (CC) (21 November 2019).
[18]
Mauerberger
v Mauerberger
1948 (3) SA 731
(C) at 732. Bayat v Hansa
1955 (3) SA 547
(N) at 553 C-G
[19]
National
Treasury & Others v Opposition to Urban Tolling Alliance &
Others
(OUTA)
2012
(6) SA 223
CC at para 43
[20]
Plascon
- Evans Paints (TVL) Limited v Van Riebeeck Paints (Proprietary)
Limited
(53/84)
[1984] ZASCA 51.
[21]
OUTA at para 47.