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[2022] ZAFSHC 358
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Molaba v Mangaung Metropolitan Municipality and Another (1589/2022) [2022] ZAFSHC 358 (11 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1589/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
FUNDANI
ELCON MOLABA
Applicant
And
MANGAUNG
METROPOLITAN MUNICIPALITY
1
st
Respondent
MATHAPELO
OLRIENA MASISI
2
nd
Respondent
HEARD
ON:
25 AUGUST 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 14h00 on 11 January 2022.
[1]
The applicant was appointed by the first respondent (“the
Municipality”)
as its general manager: Supply Chain Management
(“the SCM post”) with effect 1 March 2012. On 17 April
2019, the applicant
was transferred to the post of general manager:
Institutional Compliance (“the IC post”) by the
Municipality’s
former city manager Advocate Tankiso Mea
(“Mea”). The applicant was aggrieved by Mea’s
decision to transfer him
to the IC post as a result, he did not obey
Mea’s instructions to assume the duties of the general manager
in the IC post
for about two years until he was reinstated back to
the SCM post on 18 August 2021.
[2]
It is the applicant’s case that Mea’s decision to
transfer him was unlawful
and invalid because it was implemented
without his consent therefore amounts to a unilateral amendment of
the terms of his employment
contract, his requests to have audience
to discuss the transfer before it was implemented were declined and
it also constitutes
a constructive dismissal due to the fact that
pursuant to the transfer, Mea appointed the second respondent in the
applicant’s
SCM post.
[3]
Shortly after he resumed his duties in the SCM post in August 2021,
the second respondent
launched an urgent application in this court
seeking to interdict the Municipality and its executives against
removing or transferring
her from the SCM post pending review
proceedings that she intended to institute to declare the applicant’s
reinstatement
to the SCM post invalid. The application was
subsequently removed from the roll on 31 August 2021. The unfair
labour practice dispute
which the second respondent had referred to
the South African Local Government Bargaining Council was also not
proceeded with.
[4]
Approximately seven (7) months later in March 2022 the applicant
received instructions
from the then acting city manager, Mr Mzingisi
Nkungwana (“Nkungwana”) to move office and revert back to
the IC post.
The applicant refused then on 22 March 2022 he was
forcefully removed from his office by the Municipality’s
security personnel
and also threatened with violence if he insisted
on refusing to relinquish the SCM post. He has not been able to
report for duty
since then as he feared for his life.
[5]
The applicant states that there is now an uncertainty with regard to
whether his contract
of employment with the Municipality in the SCM
post remains extant and Mea might return or another manager may also
repudiate his
employment contract and transfer him from his SCM post.
Accordingly, the applicant seeks the following relief:
“
1.
It is declared that, as at the date of his order, the Applicant
remains employed by the First Respondent in
the position of
General
Manager: Supply Chain Management
, and was appointed to
that post with effect from
1 March 2012
in terms
of a letter of appointment dated
3 February 2013.
2.
It is declared further that the purported transfer of the
Applicant to the position of
General Manager: Institutional
Compliance
on or about
17 April 2019
by
the First Respondent’s erstwhile
City Manager
,
namely
Adv. Tankiso Mea
, was unlawful and
invalid.
3.
It is declared, therefore, that the conduct and actions of the
First Respondent’s security personnel on or about
Tuesday
22 March 2022
which prevented the Applicant from gaining
access to and/or remaining in the designated workplace and/or office
area for the purpose
of performing his duties as
General
Manager: Supply Chain Management
were unlawful.
4.
The First Respondent and its employees and/or agents or service
providers acting on its instructions, including the employees of
any
such agents and/or service providers, are interdicted and restrained
from engaging in the above unlawful conduct and actions
towards the
Applicant, which include the unlawful unilateral variation of his
existing employment contract that was concluded with
the First
Respondent upon his appointment to the position of
General
Manager: Supply Chain Management
with effect from
1
March 2012.
5.
In the event of the Court finding that the application cannot
properly be decided on affidavit due to (a) material dispute(s) of
fact(s) arising on the papers, directing that oral evidence be heard
on the specified issues with a view to resolving any such
dispute(s)
of fact, alternatively referring the matter to trial with appropriate
directions as to pleadings or definition of the
issues, or otherwise,
in accordance with
Rule 6(5)(g)
of the
Uniform
Rules of Court.
6.
Directing the respondents who oppose the application to pay the
costs thereof, jointly or severally, the one paying the others to
be
absolved…”
[6]
At the hearing, only the relief sought in prayers 1, 2, 4 and 6 was
pursued.
[7]
The second respondent opposed the application and also launched a
conditional counter-application
for a declaratory order that the
applicant’s reinstatement back to the SCM post is unlawful,
invalid, null and void
.
[8]
The application is opposed simply on the grounds that this matter no
longer presents
an existing or live controversy and no case has been
made out for the relief sought.
[9]
The second respondent contends that the applicant is back at work and
duly performing
his duties therefore the relief sought by the
applicant is now academic. Furthermore, the applicant seeks to
challenge a decision
taken over two (2) years ago and by Mea who is
no longer in the Municipality’s employment. The applicant’s
delay in
approaching the court to affirm his employment contractual
rights militates against the court granting the order sought.
[10]
With regard to the merits of the case, the second respondent submits
that at all material times
hereto Mea was the Municipality’s
city manager and the accounting officer it follows too that he had
the powers to transfer
the applicant
[1]
and except to engage the applicant on the reasons for the transfer,
Mea was not obliged to obtain the applicant’s consent
before
taking the decision to transfer him. The applicant was duly engaged.
The decision to transfer him was relayed to the applicant
at the
meeting which took place on 17 April 2019. He was provided with the
reasons for the transfer namely, for operational reasons.
The reasons
were later provided to the applicant in writing as per his request.
[11]
At no stage did the applicant object to the transfer. He merely
suggested to be transferred to
a post of his preference namely, that
of General Manager: Strategic Support in the office of the Chief
Executive Officer and when
his suggestion was declined, he absconded
from his duties for about two (2) years while drawing a full salary
at the expense of
the Municipality who had to employ someone else to
act in his position. He did not lodge a grievance with the city
manager or an
unfair labour dispute with the Bargaining Council, for
these reason, the application must be dismissed alternatively, the
counter-application
be upheld.
[12]
The applicant has delivered an unmeritorious case. Inexplicably, the
applicant persists in seeking
a declaratory order that he remains
employed by the Municipality in the position in the SCM post and that
the transfer to the IC
post was unlawful and invalid. The applicant
also seeks an interdict to restrain the Municipality, its employees,
agents or service
providers from preventing him from gaining access
to his work place and from unilaterally amending his existing
employment contract
and this is despite the fact that, in his
replying affidavit he admits that:
“
5.17.
Not long after this application was launched on
6 April
2022,
Nkungwana exited his erstwhile position of Acting
City Manager of the First Respondent. He is no longer the First
Respondent’s
City Manager, acting or otherwise.
5.18.
The newly installed and current executive(s) of the First
Respondent
have embraced my current claim and accordingly recognize me as the
current lawful incumbent in the position of General
Manager: Supply
Chain Management (GM: SCM).
5.19. I have since
returned to work at the municipality in my position of GM: SCM, and
continue to occupy that position unhindered
to date. I have not,
since then, encountered any more unpleasant confrontations with the
First Respondent’s security personnel.”
[13]
On the available facts, the applicant’s employment status
quo
ante
has been restored and the threat to him or his employment no
longer exists. I’m thus in agreement with the second
respondent’s
contention that this matter no longer presents an
existing or live controversy which warrants this court intervention.
[14]
In
Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
[2]
the court held that:
‘
A case is moot
and therefore not justiciable if it no longer presents an existing or
live controversy which should exist if the
court is to avoid giving
advisory opinions on abstract propositions of law.’
[15]
The applicant’s fear that the decision to transfer him might
arise again if there is a
shift in management in the future or if Mea
and Nkungwana are reinstated does not save this matter from mootness.
On his own version
the contract is extant in that regard, there are
sufficient safeguards against the breach of the terms of his
employment contract.
The applicant would have both an unfair labour
practice claim and a contractual claim in the event that he is again
confronted
by a decision which constitutes a unilateral amendment of
the terms and conditions of his employment.
[3]
Furthermore, in terms of the Municipality’s Delegation of
Powers Policy
[4]
the applicant
is entitled to invoke the internal grievance procedure by lodging an
appeal with the city manager against the impugned
decision.
[16]
In conclusion, I hold that Courts do not exist for hypothetical
issues.
[5]
I am also of the view
that court orders are not meant to cure conjectural anxieties.
[17]
I am of the view that the remainder of the facts of this matter do
not justify a judgment on
the merits. The application ought to fail.
[18]
With regard to costs,
there is no reason why the
costs should not follow the result.
[19]
In the premises, I make the following order
:
1.
The application is dismissed.
2.
The applicant shall pay the second respondent’s
costs.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant:
Adv.
A.I.B. Lechwano
Instructed
by:
Amade
& Company Inc.
BLOEMFONTEIN
i
nfo@amadeinc.o.za
Counsel
on behalf of the 2
nd
respondent:
Adv.
B. Mene SC
Instructed
by:
SMO
Seobe Attorneys
BLOEMFONTEIN
d
aphne@seobeinc.co.za
[1]
S55(1)(b), (e), (f),(m) (q) of
Local Government Municipal Systems
Act No, 32 of 2000
;
S60
and
80
(2)(b) of the
Local Government
Municipal Finance Management Act, 56 of 2003
and the Delegation of
Powers Policy of the Municipality, Regulation G-9 (Delegation of
Powers Policy).
[2]
2000
(2) SA 1
(CC)
at 18.
[3]
Mazista
Tiles (Pty) Ltd v National Union of Mineworkers & others
(2004)
25 ILJ 2156
(LAC).
[4]
Clause 6.4 of the Mangaung Delegation of Powers of Policy provides
thus:
“
A
person whose rights are affected by a decision taken by a delegated
body may appeal against that decision by giving written
notice and
reasons for the appeal to the City Manager within 21 days of the
date of the notification of the decision. The City
Manager must
promptly submit the appeal to the appropriate appeal authority who
must decide on the appeal in the manner and within
the time set out
in the Systems Act. The appeal authority must consider the appeal,
and confirm, vary or revoke the decision,
but no such variation or
revocation of a decision may detract from any rights that may have
accrued as a result of the decision…”
[5]
J T
Publishing (Pty) Ltd v Minister of Safety and Security
[1996] ZACC 23
;
1997
(3) SA 514
(CC);
1996
(12) BCLR 1599
(CC)
at para 15;
[1996]
ZACC 23)