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2015
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[2015] ZAGPPHC 454
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Kekana v Mogalakwena Local Municipality and Others (28113/15) [2015] ZAGPPHC 454 (1 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: 28113/15
DATE: 01 JUNE 2015
In the matter between:
SHELLA WILLIAM
KEKANA
........................................................................................
APPLICANT
And
MOGALAKWENA LOCAL
MUNICIPALITY
.....................................................
1st
RESPONDENT
MEMBER OF THE EXECUTIVE
COUNCIL FOR COGHSTA,
LIMPOPO
.............................................................
2nd
RESPONDENT
PP
SELEPE
..............................................................................................................
3rd
RESPONDENT
ADV. M ZONDO N
O
..............................................................................................
4th
RESPONDENT
ADV W MOKHARE
N.O
.........................................................................................
5
th
RESPONDENT
TLHALEFI ANDRIES
MASHMAITE
..................................................................
6th
RESPONDENT
M R
LEBELO
...........................................................................................................
7th
RESPONDENT
L D
LANGA
..............................................................................................................
8th
RESPONDENT
Coram: HUGHES J
JUDGMENT
Delivered on: 01 June 2015
Heard on; 13 May 2015
HUGHESJ
1. In this urgent application the
applicant seeks the relief as set out below:
1.1 That the non-compliance with the
rules of this Honourable Court in respect of service and time be
condoned and that the matter
to be heard as one of urgency in terms
of Rule 6(12) (a);
1.2 Declaring that the following
proceedings and/or decisions are unlawful:
(a) The precautionary suspension of the
applicant during November to December 2014;
(b) The institution of disciplinary
proceedings against the applicant during December 2014;
(c) The disciplinary hearing of the
applicant and the outcome thereof on 25 March 2015;
(d) The dismissal of the applicant on
31 March 2015.
1.3 Setting aside:
(a) The precautionary suspension of the
applicant during November to December 2014;
(b) The institution of disciplinary
proceedings against the applicant during December 2014;
(c) The disciplinary hearing of the
applicant and the outcome thereof on 25 March 2015;
(d) The dismissal of the applicant on
31 March 2015.
1.4 Declaring that the third respondent
is currently occupying the position of Acting Municipal Manager of
the first respondent
unlawfully;
1.5 Interdicting the third respondent
from acting as the Municipal Manager of the first respondent and from
performing any acts
and responsibilities as Acting Municipal Manager;
1.6 That the first and any of the other
respondents who may oppose the application pay the costs of this
application, jointly and
severally on a scale as between attorney and
client.
2. The applicant held the position of
Municipal Manager of Mogalakwena Local Municipality until 31 March
2015. On 4 December 2014,
the council adopted a motion to impose
precautionary suspension proceedings against the applicant pending
his disciplinary hearing.
In the interim the second respondent (MEC),
on 8 December 2014, appointed the third respondent, PR Selepe
(Selepe) as Acting Municipal
Manager. This entire process is the
subject of a review application between the municipality and the
applicant in this court.
3. The notification of the applicant’s
disciplinary hearing was issued on 24 December 2014 and was to be
held on 14 January
2015. On 23 March 2015, in the absence of the
applicant, an independent chairperson chaired the disciplinary
hearing. The chairperson,
on 25 March 2015, made a finding and
proposed a sanction, which council endorsed and adopted after a
municipal council meeting.
The sanction imposed was dismissal with
immediate effect.
4. The applicant’s reason for his
non-attendance at the hearing was that he was hospitalised from 18
March 2015 to 1 April
2015. The applicant is aggrieved that he was
found guilty and sanctioned without being given a hearing to mitigate
before the sanction
was imposed.
5. The applicant contends, that the
basis of the relief sought in this application, is the fact that the
appointment of Selepe,
whether lawfully or unlawfully, lapsed on 7
March 2015. However, in paragraph 11.2
and 12 of the applicants founding affidavit he states the follow:
“11.2 This application is for an
order declaring my precautionary suspension, the institution of
disciplinary proceedings
against me, my disciplinary hearing and the
outcome thereof as well as my eventual dismissal unlawful and invalid
and setting same
aside. I further seek an order declaring that Selepe
is currently unlawfully occupying the position of Acting Municipal
Manager
and an interdict preventing him from performing any functions
as such.
12.
Various unlawful actions and /or
decisions were taken by the Respondents in the course of events that
led to my eventual purported
dismissal as Municipal Manager on 31
March 2015. The actions and/or decisions, which will each be dealt
with in detail below are
the following:
12.1 The unlawful constitution of the
Municipality's council on 6 November 2014 and unlawful resolutions
taken at the meeting held
at the Oasis Lodge in Mokopane on the said
date;
12.2 The unlawful calling and
constitution of the Municipality’s special council meeting held
at the Oasis Lodge on 4 December
2014 as well as the unlawful
resolutions taken on the said meeting;
12.3 The unlawful appointment of Selepe
as Acting Municipal Manager of the Municipality on 8 December 2014;
12.4 My unlawful suspension and the
unlawful institution of disciplinary proceedings against me during
November to December 2014;
12.5 The unlawful and irregular
conducting of the disciplinary proceedings by the Chairperson on 23
and 25 March 2015;
12.6 The unlawful resolution taken by
the council meeting of the First Respondent on 31 March 2015 under
item 10 to dismiss me with
immediate effect. ”
6. The first, third, sixth, seventh and
eighth respondent’s (the municipality) disputed urgency and
raised a point in limine
of jurisdiction of this court to entertain
this dispute. The MEC also disputed the urgency of this application
and raised the defence
of lis pendens in respect of the relief
sought.
7. It is common cause, that in order to
entertain the issue of urgency and the relief sought, the issue of
this court’s jurisdiction
has to be determined. This would
settle whether this court was competent to issue an order on urgency
and the relief sought. I
now turn to deal with the aspect of
jurisdiction.
8. The municipality submitted that on
informing the applicant of his dismissal he was advised of the
process to be followed in terms
of the Labour Relations Act 66 of
1995 (LRA), if he intended to challenge his dismissal. He had 30 days
from the date of his dismissal
or the date upon which he became aware
of his dismissal to ‘refer the dispute to the relevant
bargaining council’.
Instead, 20 days after the applicant
dismissal, on 20 April 2015, he launched this urgent application.
9. The municipality argued that this
court did not have jurisdiction to make a declaratory order rendering
the dismissal of an employee
unlawful. The LRA, it contended in s186
and s191 sets out provisions as to what constitutes dismissal and the
mandatory procedure
to be followed by the applicant if one challenges
the dismissal. A dismissed employee has 30 days to refer the disputed
to the
CCMA or Bargaining Council for conciliation and arbitration.
If the arbitration award is then challenged, in terms s145 and s158
(1) (g) of the LRA, the Labour Court will have jurisdiction to review
and set aside the award.
10. The municipality places reliance on
the Constitutional Court cases of Chirwa v Transnet Ltd and Others
[2007] ZACC 23
;
2008 (4) SA 367(CC)
and that of Gcaba v Minister for Safety and
Security and Others
2010 (1) SA 238
(CC) amongst others.
11. The municipality emphasised that
the determination of jurisdiction as stated in Gcaba (para [75] at
263C-G) is based on the
pleadings before the court. Further, a
disgruntled employee cannot be seen to forum shop when the
legislature specifically created
legislation, the LRA, to deal with
this specialised field, by the allocation of this specialised
institution to adjudicate over
these disputes and the protection of
rights in this particular area of law.
12. The applicant in addressing this
issue of jurisdiction conceded that jurisdiction was determined on
the pleadings and not the
substantive merits of the case. The
applicant went on further to add that one looks at the formal
terminology of the notice of
motion and the content of the supporting
affidavits and interprets these to establish the legal basis of the
applicant’s
claim. As was stated in Gcaba para [75] at 263E-F
It is not for the court to say that the facts asserted would sustain
another
claim, admissible in another court.
13. The applicant in argument
emphasised that this application ‘is based on the blatant
unlawful manner in which the whole
disciplinary process which
commenced with his precautionary suspension was perpetrated by the
Respondents and not whether an unfair
suspension or dismissal in
terms of the LRA has occurred’.
14. On my perusal of the supporting
affidavit of the applicant and the relief sought, the applicant
premises his application on
the unlawful and illegal contravention of
the following legislation:
(a) Local Government: Municipal
Structures Act 117 of 1998 (the Structures Act);
(b) Standing Rules and Orders of
Municipality published in the provincial Government Gazette 1686 of
30 September 2009; and
(c) Local Government: Municipal Systems
Act 32 of 2000 (the Systems Act), with regards to council meetings
held on 6 November 2014
and 4 December 2014 that culminated in the
decision to convene the disciplinary proceedings and the eventual
appointment of Selepe.
15. The applicant contends that
disciplinary proceedings, the manner in which they were conducted and
the outcome thereof was not
conducted in terms of the Local
Government: Disciplinary Regulations for Senior Managers Government
Notice 344 in Government Gazette
34213 of 21 April 2011.
16. The applicant concludes that his
dispute is not about an unfair suspension or dismissal but rather
that of an unlawful suspension
as a part of an unlawful disciplinary
process that resulted into an unlawful dismissal. Further, the
particular conduct, though
it constitutes unfair labour practice,
could give rise to other rights of action, provided the claim is not
formulated or falls
within the exclusive jurisdiction of the Labour
Court, the High Court will have jurisdiction. In this instance the
applicant argued
that It can by no stretch of the imagination be said
that what the Applicant is asserting is an unfair labour practice
(suspension)
or an unfair dismissal which ousts the’ High
court.
17. In the determination of
jurisdiction, I am of the view that it is prudent to understand that
s23 of the Constitution regulates
the employment relationship and
guarantees fair labour practise and procedures between the employer
and employee. Whilst, s33 of
the Constitution guarantees the right to
lawful, reasonable and procedurally fair administrative action
between the State and the
citizens of South Africa.
18. Do we find in s33 any indication
that it regulates the relationship between the State and the
employees of the State? In dispute
or grievances involving the State
and its employees, where the complaint is directed to the conduct of
the State as an employer,
especially so where it has no direct
implications and or consequences on other citizen’s, but for
the employee involved,
this conduct does not amount to an
administrative action. See Gcaba para [64] at 259G-260A.
19. In addition, whether the employer
is a public or private organ does not dictate whether the conduct
complained of constitutes
an administrative action, as per Ngcobo J
in Chirwa para [142] at 415E-G and [150] at 417H-418A.
20. Likewise in this matter, the fact
that the employer is the municipality an organ of State, whom the
applicant is aggrieved with,
does not make the action or conduct
complained of by the applicant an administrative action.
21. The conduct of the municipality
complained of by the applicant, in my view, has direct implications
and consequences upon the
applicant and no one else. In no way
whatsoever are the citizens of the municipality affected by that
complained of by the applicant
in the founding affidavit paragraph 12
and as set out in paragraph 5 above.
22. The applicant argued that the
reviewing and setting aside of Selepe’s appointment has been
overtaken by the fact that
his appointment lapsed on 7 March 2015. In
terms of the Systems Act, the municipal council can only appoint an
acting manager for
a period of three months, s54A (2A) (a). The
applicant reiterated that this was the core of his relief sought
against Selepe. He
further argued that no extension was sought or
granted and if any extension was sought it would only be for a
further three months,
s54A (2A) (b), and this was not the case in
this matter.
23. In reply, the municipality pointed
out that the secondment of Selepe was authorised by the MEC, by way
of a letter of secondment
dated 8 December 2014, which appointed
Selepe “as Acting Municipal Manager with immediate effect until
the post is filled”.
The municipality argued that this
appointment was in line with s54A (6) (a) of the Systems Act. For
easy reference I have set out
the relevant section below:
54A Appointment of municipal managers
and acting municipal managers (6) (a) The municipal council may
request the MEC for local
government to second a suitable person, on
such conditions as prescribed, to act in the advertised position
until such time as
a suitable candidate has been appointed.
24. Consequently, in my view, on an
examination of the pleadings and relief sought, the assertion sought
by the applicant cannot
be considered as an administrative action.
25. When jurisdiction is raised as a
point in limine as was stated in Gcaba it’s determined on the
pleadings, which must be
interpreted to establish the legal basis of
the applicants claim. It is not for this court to determine on the
facts asserted that
they give rise to another claim in another court.
26. The applicant argues that (the
applicant’s case is not an unfair suspension or dismissal but
an unlawful suspension as
part of an unlawful disciplinary process
culminating in an unlawful dismissal.’ This clearly squarely
falls within the ambit
of the employer and employee relationship,
which is entrenched in the LRA.
27. The situation complained of by the
applicant is such that it deals with the conduct of the employer
within the suspension, disciplinary
and dismissal proceedings of the
employee. As such, the applicant’s complaint is to be
adjudicated by the Labour Court. This
is the court that is competent
to hear and determine the labour related issue between the parties.
28. In this instance, the process that
culminated into the dismissal of the applicant is governed by s191 of
the LRA. This deals
with aspects of dismissal of an employee. The
dismissal of an employee could never amount to an administrative
action as is sought
to be asserted by the applicant, See Chirwa and
Gcaba.
29. In the result, my conclusion is,
that the court that has the power and is competent to adjudicate the
dispute as asserted by
the applicant in his pleadings is the Labour
Court. Thus, this court does not have the jurisdiction to adjudicate.
30. I do not deem it necessary to deal
with the issues raised by the MEC as I lack jurisdiction.
31. The cost are awarded to the
successful parties, and as such, the costs will follow the result on
a party and party scale, which
would be inclusive of the employment
of two counsels where applicable.
32. In conclusion I make the following
order;
32.1 The application is dismissed.
32.2 The applicant is ordered to pay
the costs of the respondent’s who opposed this application.
W. Hughes
Judge of the High Court