About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 404
|
|
Motsemme v City of Matlosana (27572.2016) [2016] ZAGPPHC 404 (25 May 2016)
REPUBLIC
OF
SOUTH
AFRICA
,:;'
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE
NO:
27572/2016
DATE: 25 MAY
2016 NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
REVISED
MOTSEMME
ELIE
TSI
ETSI
Applicant
CI
TY
OF
MATLOSANA
LOCAL
MUNICIPALITY
1st
Respondent
RAMAGAGA
SETH
(ADMINISTRATOR:
CITY
OF
MATLOSANA)
2nd
Respondent
REASONS
FOR
JUDGMENT
AC
SASSON,
J
[1]
In
this
matter
the
applicant
(Mr
Motsemme)
sought
on
an
urgent
basis
an
order
declaring
that
the
termination
of
his
contract
of
employment
was
"unlawful
and/or
invalid
and/or
unconstitutional
thus
null
and
void
and
as
a
result
thereof
setting
the
same
aside".
The
applicant
also
sought
an
order
to
compel
the
1
51
respondent
(the
City
of
Matlosana
Local
Municipality)
to
comply
with
the
contract
until
the
contract
lapses
or
until
the
lawful
termination
thereof.
[2]
At
the
hearing
of
the
urgent
application,
the
court
was
of
the
view
that
the
matter
was
not
urgent.
The
matter
was
struck
from
the
role
with
costs
on
an
attorney
and
own
client
scale.
Here
are
brief
reasons
for
my
order.
[3]
The
applicant
was
employed
as
the
Municipal
Manager
of
the
first
respondent
on
a
fixed
term
contract
with
effect
from
22
February
2012
and
terminating
on
21
February
2017.
[4]
The
first
respondent
was
placed
under
administration
and
the
second
respondent
(Mr
Ramagaga)
was
appointed
as
the
administrator
of
the
first
respondent.
[5]
The
applicant
was
placed
under
precautionary
suspension
on
9
February
2015.
The
applicant
unsuccessfully
challenged
his
suspension
in
the
Labour
Court.
I
should
also
point
out
that
the
applicant
had
also
approached
the
Labour
Court
for
an
order
interdicting
the
respondents
(in
that
application)
from
proceeding
with
the
disciplinary
proceedings
against
him
pending
the
final
determination
of
proceeding
before
the
High
Court.
In
those
proceedings
the
applicant
sought
amongst
other
things
to
challenge
the
second
respondent's
(Mr
Ramagaga)
authority
to
institute
disciplinary
proceedings
against
him.
Van
Niekerk,
J
concluded
that
he
was
not
persuaded
that
the
failure
of
the
Labour
Court
to
intervene
in
domestic
disciplinary
proceedings
would
lead
to
a
grave
injustice
and
therefore
dismissed
the
application
with
costs
[6]
The
applicant
was
thereafter
charged
and
called
to
appear
before
a
disciplinary
hearing.
After
protracted
delays
in
bringing
the
disciplinary
hearing
to
a
finality,
the
applicant
was
informed
on
31
March
2016
that
his
fixed
term
contract
was
terminated
with
one
month's
notice.
[7]
The
applicant
now
contends
that
he
is
entitled
to
an
order
on
an
urgent
basis
declaring
that
the
termination
of
the
contract
was
unlawful
and
that
he
be
allowed
to
continue
in
his
position
as
the
Municipal
Manager
until
the
contact
lapses
or
until
the
lawful
termination
thereof.
[8]
The
applicant
contended
that
the
termination
of
his
contract
"is
an
extremely
important
issue
"and
that
his
"matter
also
involves
public
interest
considering
the
fact
that
[he
is]
employed
in
the
most
senior
position
in
Local
Government".
Is
the
matter
urgent?
[9]
The
fact
that
his
contract
may
have
been
unlawfully
terminated
(although
I
have
not
decided
this
issue
in
light
of
the
fact
that
the
matter
was
struck
from
the
role)
does
not
per
se
justify
the
hearing
of
a
matter
as
one
of
urgency.
I
am
further
of
the
view
that
the
applicant
has
an
alternative
remedy
at
his
disposal:
The
applicant
can
approach
the
court
in
the
ordinary
course
and
should
a
court
find
in
his
favour
that
the
termination
of
the
employment
contract
had
been
unlawful,
the
applicant
would
be
entitled
to
damages
flowing
from
such
unlawful
termination.
[1
O]
The
applicant
also
contended
that
the
issues
raised
in
this
application
are
of
"public
interest".
There
is
no
merit
in
this
submission.
The
mere
fact
that
a
matter
may
be
in
the
public
interest
(although
I
am
not
persuaded
that
this
matter
raises
issues
that
are
in
the
public
interest)
does
not
per
se
mean
that
the
matter
i
s
urgent.
[11]
In
the
founding
affidavit
the
applicant
is
further
evasive
in
respect
of
why
he
will
suffer
irreparable
harm
should
the
matter
not
be
dealt
with
on
an
urgent
bas
The
applicant
also
does
not
adequately
address
the
issue
of
whether
he
has
an
alternative
remedy
at
his
disposal.
This
is
a
glaring
omission
as
the
applicant
clearly
has
an
alternative
remedy
at
his
disposal
and
that
is
to
approach
a
court
and
claim
damages
resulting
from
the
alleged
unlawful
termination
of
his
contract.
[12]
In
the
event
I
am
of
the
view
that
the
matter
is
not
urgent.
The
matter
is
therefore
struck
from
the
role.
[13]
In
respect
of
costs
I
have
taken
into
account
that
the
applicant
had
sought
a
special
costs
order
against
the
respondents
without
laying
a
proper
basis
for
such
an
order.
I
am
in
agreement
with
the
submission
on
behalf
of
the
respondents
that
this
prayer
was
made
recklessly.
The
applicant
has
also
unnecessarily
burdened
these
papers
with
copies
of
legislation.
The
papers
have
therefore
been
rendered
unnecessarily
voluminous.
I
am
therefore
of
the
view
that
a
special
costs
order
is
warranted.
AC
SASSON
JUDGE
OF
THE
HIGH
COURT
Appearances:
For
the
applicant
Instructed
by
Mr
Scholtz
Scholtz
Attorneys
For
the
Respondent
s
Instructed
by
Adv.
BO
Hitchings
Waks
Silent
Inc.