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[2022] ZAECMHC 12
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Nyebevu v King Sabatha Dalindyebo Municipality (2448/21) [2022] ZAECMHC 12 (17 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION MTHATHA]
CASE
NO.2448/21
In
the matter between:
LWANDILE
NYEBEVU
Applicant
And
KING
SABATA DALINDYEBO LOCAL
MUNICIPALITY
Respondent
JUDGMENT
TOKOTA
J
Introduction:
[1]
The applicant seeks in substance a declaratory order that he is a Law
Enforcement
Officer Grade 12 in the respondent’s department of
Public Safety and for this reason he should be placed in that
position.
Further he seeks an order declaring that his placement in
the department of Community Services as a General Worker is unlawful.
The application is opposed.
Factual
Background:
[2]
The applicant was appointed by the respondent on 18 June 2009 as a
General Worker
Grade 19 in the Community Services of the respondent.
[3]
During November 2012 the applicant completed an undated form and
applied for transfer
from his section (Community Services) to Public
Safety section in order to develop himself. His application was
recommended by
the Commander Law Enforcement on 12 December 2012. It
was recommended that he be transferred to access control posts.
According
the memorandum dated 10 November 2012 one T N Tyala either
recommended or approved the transfer. The transfer has no particulars
of the change of rank and/or status of the applicant.
[4]
The applicant alleges that on 13 December 2012 he received
communication that he should
report for duty as a Law Enforcement
Officer grade 12 at the Public Safety division. He avers that he
reported in this division
on 15 December 2012 and was introduced to
the Head of the Public Safety one Mr Hintsa. From that date he
commenced performing the
duties of a Law Enforcement Officer. These
allegations are denied by the respondent and the applicant has
neither attached any
document nor attached any confirmatory affidavit
by either Mr Hintsa or someone else in support of these allegations.
He claims
that he could not find supporting documents.
[5]
The applicant further claims that in January 2013 he was given the
official uniform
of a Law Enforcement Officer and was taken to
various forms of rehearsals. In his opinion this conduct was
tantamount to a promotion
from the General Worker Grade 19 to the
rank of a Law Enforcement Officer Grade 12. The applicant claims that
he was deployed to
various points within the division as a Law
Enforcement Officer. These allegations are challenged by the
respondent and the applicant
has placed no evidence to substantiate
the allegations not even a confirmatory affidavit from this division
except his say so.
[6]
During April 2016 the applicant launched an application in this court
seeking an order
compelling the respondent to pay him a salary
commensurate with his rank of Law Enforcement Officer and to pay him
the benefits
accruing therefrom with effect from 15 December 2012. On
2 February 2017 Notununu AJ granted an order by consent in terms of
which
the applicant was reinstated to the position of a General
Worker: Community Services. However, the court ordered the respondent
to pay the applicant a salary of a Law Enforcement Officer from 12
December 2012 pursuant to his’ promotion’ to that
rank
and further that the respondent should hold an enquiry to determine
the validity of his ‘promotion.’ It was ordered
that the
applicant be paid a salary notch of a Law Enforcement Officer until
the finalisation of that enquiry. The respondent was
further order to
compensate the applicant a salary equivalent to 8 months as a Law
Enforcement Officer grade 12 in respect of his
‘dismissal’.
[7]
The court order of 2 February 2017 was obtained consequent to a
settlement agreement.
The applicant contends that the court order
demonstrates that the respondent acknowledged that the applicant was
transferred and
promoted to Law Enforcement Officer. I cannot agree.
The order actually reinstated the applicant to his position in terms
of the
contract of employment, namely General Worker: Community
Services. The decision to promote him was the subject of
investigation
to enquire into its validity. Furthermore there is no
proof of such promotion to the rank of Law Enforcement Officer Grade
12.
[8]
Subsequent to the court order of Notununu AJ and on 27 June 2017 the
respondent addressed
a letter to the applicant reinstating him to the
post of a General Worker: Community Services with retrospective
effect from 1
November 2015. The letter informed him that he would be
paid an acting allowance at the Grade 12 rank from 1 December 2012 to
31
October 2015. Further that the respondent was to hold an enquiry
into the validity of the alleged promotion.
[9]
The substance of this application is a dispute relating to the
promotion of the applicant
from the post of General Worker Grade 19
to the post of Law Enforcement Officer Grade 12. The applicant prays
that this court should
declare his placement in the post of General
Worker as unlawful and promote him to the post of Law Enforcement
Officer Grade 12.
The respondent disputes that the applicant was ever
promoted to the rank of Law Enforcement Officer. That being the case
the gravamen
of the dispute therefore is that of an unfair Labour
Practice relating to promotion.
Appointments
[10]
The power to appoint the respondent’s staff is vested in the
Municipal Manager in terms
of section 55(1)(e) of
Local Government:
Municipal Systems Act 32 of 2000
subject to the policy
directions of the Municipal Council. Employment of staff is vacancy
driven and all appointments and promotions
are only made to existing
approved vacancies.
[1]
As a
general rule administrative and auxiliary support posts must be
advertised internally and externally only in the event there
is no
suitable candidate internally.
[2]
The selection committee for appointment of posts levels 19 to 15
consists of Head of Department responsible for Human Resources;
Head
of Department concerned; Head of department of Human Resources and
any other Head nominated by Head of Division where applicable
and
Chairperson of Unions as observers.
[3]
For post Levels 14 to 12 the Committee consists of General Manager:
Human Resources; Relevant General Manager in the Department
in which
the post is located (Chairperson) and any other General Manager
nominated by the General Manager responsible for Human
Resources or
Director Human Resources; Chairperson of Unions or shop stewards
nominated by the Chairperson as observers.
Promotions
[11]
An employee may only be promoted to a vacant post in the higher
grading if he is suitably qualified
for that post. The Manager
responsible for Human Resources must cause the post to be advertised
on the Municipal notice boards,
internal newsletter or other
electronic means and call for suitably qualified employees to submit
applications in the prescribed
format. After the closing date the
selection committee will interview the candidates accordingly.
[12]
The respondent has argued that this court has no jurisdiction to
entertain this application.
It contends that this is a dispute of
unfair Labour Practice as envisaged in section 186(2)(a) of the
Labour Relations Act 66 of
1995 (LRA).
[13]
Mr
Zono
appearing for the applicant submitted that this is an
application based on contract and therefore does not fall under
section 186
of the LRA. The problem with this argument is that the
respondent denies that the applicant was ever promoted to the post of
Law
Enforcement Officer. The applicant is unable to say who promoted
him and whether the prescripts referred to above were complied
with.
Mr
Zono
submitted that the denial by the respondent cannot
stand in that it has recognised that the applicant had in fact been
promoted
but only challenges the validity of that promotion. He
referred me to the court order of Notununu AJ paragraph 3 thereof and
paragraph
3 of a letter dated 27 June 2017 and submitted that the
contents thereof indicate recognition of the existence of the
promotion.
[14]
It is expedient to quote the relevant paragraph of the letter dated
27 June 2017: It reads: “
The Municipality will hold an
enquiry to determine the validity or otherwise of your alleged
promotion from General Worker to Law
Enforcement Officer”.
Paragraph
3 of the court order reads: “
That the respondent shall hold
an enquiry to determine the validity or otherwise of the applicant’s
promotion from General
Worker: Community Services to Law Enforcement
Office: Public Safety”.
Mr
Zono
argued that the
wording of these sentences signify an acknowledgement of the
existence of the promotion. The only aspect to be
investigated was
the validity thereof. This argument flies in the face of a denial by
the respondent that the applicant was ever
promoted.
For
that matter the order of Notununu AJ reinstated the applicant to the
post of General Worker. The applicant consented to that
order.
[15]
Furthermore the applicant made no attempt to establish that the
procedure set out above in terms
of the prescripts was followed. As a
matter of fact, there is no evidence that the Municipal Manager was
ever involved in the so-called
promotion. For a declarator of an
existing right the applicant must show the jurisdictional facts
establishing that right. The
mere fact that he was promised a
promotion by certain officials who have no authority to promote him
does not help the applicant.
I am satisfied that this is a dispute of
unfair labour practice relating to promotion as envisaged in section
186(2)(a) of the
LRA.
[16]
The Constitutional Court
[4]
has
held that where the true nature of a dispute is one that concerns the
breach of an obligation established by the LRA, a remedy
must be
sought in terms of that Act and in accordance with the dispute
resolution mechanisms established by the LRA. At paragraph
[137] of
the judgment, the court said the following:
[137]
The second basis for my conclusion is that the applicant’s
appeal should be dismissed
is a principle that, for convenience, I
call ‘LRA remedy for an LRA breach’. The principle is
that, if a litigant’s
cause of action is a breach of an
obligation provided for in the LRA, the litigant as a general rule,
should seek a remedy in the
LRA. It cannot go outside of the LRA and
invoke the common law for a remedy. A cause of action based on a
breach of an LRA obligation
obliges the litigant to utilise the
dispute resolution mechanisms of the LRA to obtain a remedy provided
for in the LRA.
[17]
The scheme of the LRA is that, if it creates a right, it also creates
processes or procedures for the
enforcement of that right, a dispute
resolution procedure for disputes about the infringement of that
right, specifies the fora
in which that right must be enforced and
specifies the remedies available for a breach of that right.
The
right not to be subjected to unfair labour practice is located in
section 186(2) of the LRA.
[18]
It is well-established that jurisdiction is to be determined from the
pleadings. The parties
usually characterise the nature of the dispute
and the court is bound by that. However, in
CUSA
v Tao Ying Metal Industries & others
[2009] 1 BLLR 1
(CC) para. 68 It has been held that “
[w]here
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what
the law is, a
court is not only entitled, but is in fact also obliged, mero motu,
to raise the point of law and require the parties
to deal therewith.
Otherwise, the result would be a decision premised on an incorrect
application of the law. That would infringe
the principle of
legality. Accordingly, the Supreme Court of Appeal was entitled mero
motu to raise the issue of the commissioner's
jurisdiction and to
require argument thereon.”
[5]
[19]
In
casu
and before the hearing date of this matter I issued a
directive seeking,
inter alia,
additional submissions
addressing me as to “(d)
Whether the applicant relies on the
contract for his cause of action, if so, which contract and the
relevant clause in the contract
must be identified;
(e)
Whether the cause of action in this application is not covered by
unfair labour practice
relating to promotion, if not, what is
precisely the cause of action?
Mr
Zono
maintained that this matter is concerned with a contract
of employment. The fallacy of this argument is that the contract
attached
to the founding affidavit is that of a General Worker:
Community Services. Furthermore, there is a court order directing
that the
applicant be reinstated to the post of a General Worker. The
less is said about the court order the better because it also
contains
an order of compensation for 8 months in respect of the
dismissal of the applicant (whatever that means remains a mystery to
me).
Furthermore, this aspect of promotion was to be investigated in
terms of the court order. I could not get an answer from Mr
Zono
as to why the applicant approached this court instead of
following the court order which he sought and obtained.
[20]
I agree with Mr
Metu
appearing for the respondent that the
applicant has not established a cause of action emanating from any
contract either in terms
of common law or otherwise. In the
circumstances the applicant has not only failed to make out a case
for declaratory order but
failed to establish that this court has
jurisdiction to entertain the relief sought. His remedy lies in the
LRA.
[21]
In the result the following order is made:
The
application is dismissed with costs.
B
R TOKOTA
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant:
Mr A S Zono
Of
A S Zono & Associates
For
the respondent:
B Metu
Instructed
by Nosindwa Attorneys Inc.
Date
of Hearing:
5 May 2022.
Date
delivered:
17 May 2022.
[1]
Clause 4.3.1 Human Resources Policies and Procedures
[2]
Ibid clause 4.3.2 (a)(i)
[3]
Ibid clause 4.4
[4]
Steenkamp and others v Edcon Limited
[2019]
ZACC 17; 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11
BLLR 1189 (CC) (30 April 2019)
[1
[5]
CUSA
v Tao Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
(2009 (1)
BCLR 1
(CC);
[2009] 1 BLLR 1
(CC); (2008) 29 ILJ 2461;
[2008] ZACC
15)
para. 68. There is a plethora of decisions that approved this
approach including cases from the Constitutional court.