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[2021] ZAECMHC 23
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Hlazo v OR Tambo District Municipality and Others (1175/2021) [2021] ZAECMHC 23 (29 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. 1175/2021
In
the matter between:
OWEN
NGUBENDE
HLAZO
Applicant
and
OR
TAMBO DISTRICT
MUNICIPALITY
1
st
Respondent
MUNICIPAL
COUNCIL, OR TAMBO DISTRICT
MUNICIPALITY
2
nd
Respondent
EXECUTIVE
MAYOR OF OR TAMBO DISTRICT
MUNICIPALITY
3
rd
Respondent
DEPUTY
EXECUTIVE MAYOR, OR TAMBO DISTRICT
MUNICIPALITY
4
th
Respondent
JUDGMENT
JOLWANA
J
[1]
On 4 May 2021 this court delivered a judgment (the main judgment) in
which Mr Hlazo was reinstated to his position as the municipal
manager of the OR Tambo District Municipality. The respondents
filed an application for leave to appeal against the said
judgment
and orders on 5 May 2021. This judgment concerns the said
application for leave to appeal. I will refer to
the parties as
they were in the main judgment for ease of comprehension.
[2]
In the notice of application for leave to appeal the respondents have
advanced a number of grounds on which the leave to appeal
is sought.
I do not intend to traverse all of those grounds of appeal save for a
few which I consider it necessary to deal
with. Some of them
are either submissions on a case that does not appear to have been
not pleaded in the main application
or re-arguments on issues that
were dealt with in some detail in the main judgment. In either
case I have carefully considered
them to see if and to what extent
should those issues result in the application for leave to appeal
being granted or refused.
[3]
The first issue which deserve some further comment is the amendment
to the notice of motion. I have dealt with the issue
of the
amendment of the notice of motion quite extensively in the main
judgment. I do not think that it will serve any useful
purpose
to repeat my reasons for allowing the amendment save to point out
that I am not at all convinced that another court may
very well come
to a different conclusion. This Court had a discretion on
whether or not to allow the amendment which had
to be exercised
judiciously in ensuring the resolution of the actual
lis
between the parties. I do wish to point out that despite the
main application having been filed on a truncated time table
in terms
of rule 6(12) of the Uniform Rules of Court the replying affidavit in
which the applicant indicated that an amendment
to the notice of
motion would be sought during the hearing of the application was
served at 08:33 on the 26 March 2021 on the respondents’
attorneys.
[4]
The applicant raised the issue of the amendment to the notice of
motion in the replying affidavit very pointedly as follows:
“
10.
In paragraph 19 of the respondents’ answering affidavit Mr
Nogumla has deposed that the 21 October 2020 resolution has
never
been set aside by any Court. Below in this affidavit I deal
with the fact that the said resolution was only made available
to my
attorneys and I only after I had filed the urgent application papers.
11.
When my attorneys requested same on 19 February 2021, the respondents
furnished an incorrect resolution of 19 February 2021
(without making
available the said resolution).
12.
I am advised that the resolution of 19 February 2021 is the subject
matter of this urgent application proceedings in that it
was taken
after the 21 October 2020 resolution.
13.
In any event, the respondents cannot rely on an earlier resolution of
21 October 2020 in circumstances where a subsequent resolution
of 19
February 2021 was taken.
14.
In the event the respondents’ case at the hearing would be that
the October 2020 resolution is still applicable, I am
advised that it
too must suffer the same fate as the 19 February 2021 resolution
because it was motivated by the legal opinion
that the employment
agreement only subsisted for two (2) years.
15.
To that end an amended notice of motion will be handed up in Court
incorporating a prayer that the resolution by the municipal
council
of 21 October 2020 must also be declared as unconstitutional,
invalid, unlawful, and in that it offends the doctrine of
legality.”
[5]
The respondents had a number of options in dealing with these
averments if they felt that they were not in compliance with any
of
the rules especially rule 28 of the Uniform Rules of Court. One
of the options available to them on receipt of the replying
affidavit
containing what they considered to be irregular, was to proceed in
terms of rule 30 of the Uniform Rules of Court.
They did not do
so. At the hearing of the main application on the 30 March 2021
they could have applied for leave to file
a further affidavit, if so
advised, they did not. In that further affidavit they would
have pointed out any prejudice the
amendment would visit upon them if
leave to file same was granted. Instead, the respondents
elected to proceed and argue
from the bar and in their heads of
argument that “
the attempt to amend the notice of motion is
irregular and fatally defective and should be disallowed
.”
[6]
In opposing the application for leave to amend the notice of motion
no reference was made to any prejudice the respondents might
suffer
if the amendment was allowed. In any event, as regards the
termination of the employment contract the respondents’
pleaded
case was that the legal advice the respondents received was that the
applicants’ contract of employment was a two
year contract and
not a five year contract. Therefore, in my view, it mattered
not which resolution implemented the said
legal advice and absent a
submission otherwise, the respondents’ case remained the same
as it related to the reasons for
the termination of the contract.
Such reasons were communicated to the applicant by the respondents in
the letter of termination.
[7]
The second ground of appeal which it is necessary to deal with is
raised as follows in the application for leave to appeal:
“
1.6
The substantive relief granted by His Lordship in relation to the
duration of the contract is at variance with the relief sought
by the
applicant, both in the original notice of motion and the purported
amended notice of motion, in this regard reference is
made to
paragraph 5 of the amended notice of motion and paragraph 4 of the
original notice of motion.
1.7
The granting of paragraph 2 in the judgment is an overreach by His
Lordship and an interference in a contract between the parties
which
was never sought by neither of the parties. His Lordship erred
in doing so.”
[8]
What the respondents now seem to be contending for is that if I found
against them as I did I could only make an order that
the applicant
prayed for which is reinstatement up to April 2023. On this
contention which was never made in the main application
in any event,
if I could not find in their favour the only option would be to
dismiss the application. I do not think so.
In fact such
a contention amounts to saying that a court and on the facts before
it cannot grant an appropriate relief, one that
is capable of being
enforced. Were that contention to prevail it would lead to such
an absurdity that courts would be hamstrung
in their constitutional
duty of resolving the actual disputes between the parties within the
prism of the pleadings. It would
lead to results that are not
informed by the entire constitutional edifice and legal framework.
[9]
In any event, the respondents themselves made a submission in their
answering affidavit whose import is contrary to what is
now being
submitted. In the answering affidavit they averred that:
“
36.
The applicant has overlooked the fact that the next council elections
are due to be held on the 4
th
of August 2021. In
terms of the law, the employment contract of a municipal manager
commences on assumption of duty and ends
1 year after the expiry of
the term of the current council.”
[10]
The order that I granted which is now said to be an overreach is in
fact what the respondents contended for as being the best
scenario
for the applicant, in the event that I found against them as I
understood the pleadings. This ground of appeal is
consequently
also unsustainable.
[11]
The third issue is the interpretation of clause 5.1 of the employment
contract. I do not intend to repeat the same points
that I made
in the main judgment which, I remain unpersuaded that my reasoning
and conclusions thereon are incorrect or that I
erred in arriving at
such conclusions. During the hearing of the application for
leave to appeal it was submitted on behalf
of the respondents that
the main case was never about the interpretation of the contract of
employment, if I understood those submissions
correctly.
However, the respondents’ entire pleaded case on the
termination of the employment contract, understood
in context of all
the pleadings as a whole, was about the interpretation of the
employment contract, in particular clause 5.1 thereof.
[12]
Even if there might have been any doubt about what the crux of the
issue was in this case, the respondents themselves in their
heads of
argument made it clear that their own understanding was that the main
case was about the interpretation of the employment
contract.
They said:
“
6.
For the applicant to succeed he will have to establish a clear
right. In order to do so he will have to convince this
Honourable Court that
his
interpretation of the contract is the only acceptable one
[1]
.
7.
It is respectfully submitted that it is far from clear what the
parties agreed upon. Subclause 5.1 is patently contradictory.
Is the reference to two years an error or is it the year 2023?”
[13]
In light of this submission it lies ill in the mouth of the
respondents to now contend otherwise. It clearly was the
interpretation of the contract in light of the legal advice that the
respondents received and on the basis of which council took
a
resolution on 21 October 2020 to terminate the employment contract
that was the issue before court. Whatever deliberations
took
place in council on 21 October 2020, once it was resolved to accept
the legal advice to the effect that based on clause 5.1
the contract
of employment terminated in April 2020 as it was a two year contract;
and once the council decided to act on that
resolution and effected
the termination in line with that resolution no fruitful purpose
would be served by seeking to establish
what deliberations took place
before the resolution was taken. Therefore, the ground of
appeal that because the applicant
had not sought reasons by way of a
rule 53 or any other form, that stood in the way of the applicant
challenging the resolutions
terminating his contract of employment
is, with respect, a red herring and is misplaced on the facts of this
matter. Throughout
the respondents’ various voluminous
papers filed in opposition to the main application the non-compliance
with rule 53 now
raised in the application for leave to appeal was
never raised. Furthermore and in any event, no
other reason
for the termination of the employment contract was
pleaded other than the legal advice which was sought and obtained to
the effect
that the employment contract was for two years and not
five years.
[14]
One of the grounds of appeal that I consider it necessary to deal
with is articulated as follows in the notice of application
for leave
to appeal:
“
1.3.1.2
The appointment letter upon which the court relied, is dated 29 March
2018, which is a date of more than a month preceding
the date of the
actual contract that was signed on 2 May 2018.
1.3.1.3
The contract contains a variation clause which reads – “No
addition to or variation or mutually agreed cancellation
of this
contract and no waiver of any right arising from this contract or its
breach or termination shall be of any force or effect
unless it has
been reduced to writing and signed by or on behalf of both parties”.
1.3.1.4
On the basis of the above, the appointment letter was irrelevant in
determining the duration of the contract.
1.4
It is submitted that His Lordship erred and misdirected himself in
relying upon the appointment letter, which was on its own,
invalid
for contravention of section 57(6).”
[15]
The posture of the respondents in the application for leave to appeal
appears to be contrary, in many respects, to its own
posture in the
main case. In their heads of argument in the main application
the respondents made the following submissions:
“
8.
To further complicate matters there is the appointment letter of 29
March 2018 (which was handed up by agreement). It states
that
the appointment was to terminate one year after the expiry of the
current Council’s term of office, the date being given
as 31
August 2022.
9.
Whilst the letter reflects the legal position as provided for in
section 57(6) of the Systems Act what it doesn’t say is
that
the appointment is for five years,
subject to
the proviso that
it would terminate one year after the municipal elections.”
[16]
Nowhere in the respondents’ heads of argument or during
submissions in the main application was the validity or relevance
of
the letter of appointment questioned. In fact its validity was
affirmed with the respondents arguing their case also based
on it for
this Court to find in their favour. This is far from saying
that it was irrelevant and should not be taken into
account. It
seems to me that the respondents are, through the application for
leave to appeal, attempting to make out a new
case which was neither
pleaded nor argued in the main application.
[17]
In arguing that reliance on the letter of appointment in the main
judgment was a misdirection reference is also made to the
non-variation clause contained in the contract. The
non-variation clause reads:
“
No
addition to or variation or mutually agreed cancellation of this
contract and no waiver of any right arising from this contract
or its
breach or termination shall be of any force or effect unless it has
been reduced to writing and signed by or on behalf of
both parties.”
[18]
The non-variation clause was used to bolster the argument that the
letter of appointment should not have been relied upon by
this Court
in establishing what the common understanding between the parties
was.
[19]
Besides the fact that this is contrary to the respondents’ own
position in the main application, at least as determined
through
submissions made during the hearing of the main application and in
their heads of argument, the respondents have misconstrued
what for
and how the letter of appointment was used. It was not used by
the applicant to seek to vary the contract or to
do anything referred
to in the non-variation clause or elsewhere in the entire contract.
Instead it was used by the court,
as clearly pointed out at the
hearing of the main application, as one of the things to take into
account in understanding what
was in the minds of the parties at the
time or round about the time the contract was concluded. As
pointed out in the main
judgment this is perfectly permissible in our
jurisprudence.
[20]
For this reason even reliance on
TDH
Tsolo Junction
[2]
is, with respect, unsustainable in my view as it will become clear
below. In that case the Supreme Court of Appeal said:
“
[6]
In its terms, the letter of appointment was a preliminary document.
It expressly provided that the development of the
property would be
governed by a written contract which would “outline the
conditions of the contract”. The undisputed
evidence was
that during the negotiations between the parties that preceded the
conclusion of the agreement, the representatives
of the respondent
had explained why the documents in question were not applicable to
the project and that this was accepted by
the appellant’s
representatives.
[7]
Thus, the parties in fact agreed to exclude the requirement that
these documents be submitted, from the agreement. The
agreement
contained no reference to the letter of appointment and, importantly
clause 15 thereof provided that it constituted the
sole memorial of
their agreement.”
[21]
TDH Tsolo Junction
is distinguishable and thus inapplicable to
this matter for a number of reasons. First, in
casu
there
was no evidence of any preliminary negotiations in which it was
agreed that the contract of employment would no longer subsits
for up
to one year after the expiry of the term of the current council or
for five years. Second, there was no evidence of
any
negotiations which took place between the date of the letter of
appointment and the conclusion of the contract. It would
be
very strange if the parties had negotiated and agreed on a two year
contract, if it was not pleaded at all by the respondents.
Third, the contract itself reflects a termination date which is at
the end of the five year period as does the letter of appointment
subject to the provisions of section 57(6) of the Municipal Systems
Act. Finally, it was never the respondents’ case
in
casu
that the termination of the contract was based on the council having
at any stage agreed on a two year contract and not a five
year
contract. In fact in their answering affidavit they make it
clear that they were not aware that it was a two year contract
until
they received legal advice. Even the termination letter makes
no reference to any such negotiations and agreement which
would have
informed the reference to the employment contract being for a
duration of two and not five years. All that the
respondents
pleaded was a bare denial that the employment contract was for five
years.
[22]
In any event the applicant never placed reliance on the letter of
appointment in advancing his case for a five year contract.
The
letter of appointment was thus not used to vary or add anything to
the contract and thus the non-variation clause was not breached
by
the applicant in his contentions for a five year contract. The
letter of appointment was used by the court to make sense
of what
prevailed and was intended by the parties at the time of the
conclusion of the contract so as to determine whether the
parties had
intended a two year or five year contract.
[23]
The treshhold for the granting of an application for leave to appeal
is codified in section 17 of the Superior Courts Act
[3]
as follows:
“
(1)
Leave to appeal may only be given where to judge or judges concerned
are of the opinion that-
(a)
(i) the appeal would have a reasonable
prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16(2)(a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.”
[24]
The Supreme Court of Appeal has given an authoritative interpretation
of section 17(1)(a) of the Superior Courts Act.
In
Mkhitha
[4]
the court stated the legal position as follows:
“
Once
again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable
prospect of success.
Section 17(1)(a)
of the
Superior Courts
Act 10 of 2013
makes it clear that leave to appeal may only be given
where the judge concerned is of the opinion that the appeal would
have a
reasonable prospect of success, or there is some other
compelling reason why it should be granted.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough. There
must be
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.”
[25]
I have carefully considered all the grounds of appeal including the
parties’ very useful heads of argument and the submissions
made
for which I am grateful. However, I am unconvinced that on the
facts of this matter, there are reasonable prospects
of success on
appeal. I can also find no compelling reason why the appeal
should be heard. Therefore, and for all the
above reasons the
application for leave to appeal stands to be dismissed.
[26]
The applicant has, in his heads of argument, asked that the costs
should include costs occasioned by the employment of two
counsel in
the event of the application for leave to appeal being dismissed.
I do not think that the matter at this stage,
warranted the
employment of two counsel.
[27]
In the result the following order shall issue:
1.
The application for leave to appeal is dismissed with costs.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the Applicant: E. MOKUTU SC with X. STEMELA
Instructed
by: MALEMBE MOTAUNG MTEMBU INC.
c/o
T.L. LUZIPHO ATTORNEYS
MTHATHA
Counsel
for the Respondent: M. NOTYESI
Instructed
by: MVUZO NOTYESI INC.
MTHATHA
Head
on: 18 June 2021
Delivered
on: 29 June 2021
[1]
My underlining.
[2]
Municipality
of Mhlontlo v TDH Tsolo Junction
(1086/2019)
[2021] ZASCA 3
(7 January 2021).
[3]
Superior Courts Act 10 of 2013
[4]
MEC for
Health, Eastern Cape v Mkhitha and Another
[2016]
Jol 36940
(SCA) at paras 16-17.