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[2015] ZAKZDHC 31
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South African Municipal Workers Union v EThekwini Municipality and Others (1973/2013) [2015] ZAKZDHC 31 (9 April 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE NO: 1973/2013
DATE: 09 APRIL 2015
In the matter between:
SOUTH AFRICAN MUNICIPAL WORKERS’
UNION
…............................................
APPLICANT
And
ETHEKWINI
MUNICIPALITY
...........................................................................
1ST
RESPONDENT
THE MUNICIPAL MANAGER: ETHEKWINI
MUNICIPALITY
....................................................................................................
2ND
RESPONDENT
INDEPENDENT MUNICIPAL AND ALLIED
TRADE
UNION
.....................................................................................................
3RD
RESPONDENT
NOMAKOSI IVY
GXAGXISA
............................................................................
4TH
RESPONDENT
MINISTER OF
LABOUR
.....................................................................................
5TH
RESPONDENT
MINISTER OF CO-OPERATIVE GOVERNMENT
AND TRADITIONAL
AFFAIRS
..........................................................................
6TH
RESPONDENT
NCEBA
GXAGXISA
.............................................................................................
7TH
RESPONDENT
JUDGMENT
Delivered on: 09 APRIL 2015
OLSEN J
[1] I have reached the conclusion that
this application brought by the South African Municipal Workers’
Union has no merit.
In furnishing my reasons for that conclusion, I
will attempt to confine myself to what is essential, and to avoid
becoming embroiled
in peripheral issues and arguments which have
emerged in the course of the applicant’s attempt to make of
this case something
which it is not.
[2] There are seven respondents. The
principal ones are the first respondent, Ethekwini Municipality, and
the fourth respondent,
Ms N I Gxagxisa, an employee of the first
respondent. The application concerns two claims.
[3] The main claim challenges the first
respondent’s appointment of the fourth respondent to the post
of Head : City Health
in its municipal structure. The fourth
respondent applied for the position in February 2009 and was
appointed in May 2009. The
applicant seeks an order reviewing and
setting aside the appointment; an order directing the first
respondent to re-advertise the
post and to fill it in compliance with
the provisions of a collective agreement entitled the “Employment
Practice Policy
Agreement”, which I shall refer to as “the
collective agreement”; an order directing the first respondent
to
investigate whether any of its officials committed acts of
misconduct in connection with the appointment of the fourth
respondent;
and finally an order directing the first respondent to
deliver a report to this court within three months reflecting the
product
of that investigation.
[4] The second claim arises as follows.
In August 2010 the fourth respondent’s son (who is cited as
the seventh respondent)
was appointed as a clerk in the fourth
respondent’s department. This was drawn to the attention of
the appropriate officials
within the municipality which resulted in
the seventh respondent’s dismissal on 1 October 2010. An
investigation revealed
that allegations of nepotism in connection
with the employment of the seventh respondent had substance. An
affidavit provided
by the first respondent’s deputy city
manager conveys that a perception of nepotism contributed to the
decision to terminate
the employment of the seventh respondent. In
so far as the consequences of this for the fourth respondent were
concerned, the
deputy city manager and the then city manager decided
that the correct approach for the employer in this case was to
counsel the
employee (i.e. the fourth respondent) and to strengthen
her human resources support, all with a view to reduce labour issues
and
conflict in the health unit where relationships with trade unions
were not good. From the first respondent’s perspective
that
resolved the issue as between employer and employee.
[5] The applicant is not satisfied with
that outcome. It accordingly also seeks an order declaring invalid
the failure of the first
respondent to institute disciplinary
proceedings against the fourth respondent with regard to the issue of
her son, an order reviewing
and correcting the decision, and an order
directing the first respondent to institute disciplinary proceedings
against the fourth
respondent within one month. The fact that these
orders are inconsistent with the primary relief sought, namely the
immediate
termination of the fourth respondent’s appointment to
her post (which is the sole pedestal upon which her status as an
employee
of the first respondent rests) seems to have escaped the
attention of the applicant. Perhaps the second claim should be
regarded
as an alternative to the first.
[6] There are accordingly two separate
sets of events in respect of which the applicant seeks relief. I
will deal first with those
relating to the appointment of the seventh
respondent to a post in the fourth respondent’s department.
A FAILURE TO INSTITUTE DISCIPLINARY
PROCEEDINGS
[7] The case which the respondents were
called upon to meet is stated as follows in the founding affidavit.
(a) The fourth respondent was “caught
red-handed in an act of nepotism”.
(b) A failure to institute disciplinary
proceedings in those circumstances “sends a very unpleasant
message to others who
may be contemplating similar acts of corruption
or nepotism”.
(c) It is a matter vital to the public
interest that the first respondent disciplines its employees who
violate its policies.
[8] In argument counsel for the
applicant stressed throughout that the applicant has not approached
this court relying on the provisions
of the
Promotion of
Administrative Justice Act, 2000
. Counsel stressed that the
challenges made by the applicant are legality challenges. I fail to
see how the allegations made in
the founding affidavit can sustain a
conclusion that the first respondent’s failure to institute
disciplinary proceedings
(in the narrow sense of the term
“disciplinary proceedings”) was unlawful.
[9] Seeking to overcome the first
respondent’s contention that counselling and assisting an
errant employee is a legitimate
mode of addressing default on the
part of the employee, and that the manner in which such default is
dealt with is a matter between
employer and employee, counsel for the
applicant called in aid of his argument Item 14A of Schedule 2 to the
Local Government :
Municipal Systems Act, 2000, which is the code of
conduct for municipal staff members. Item 14A is to the effect that
a breach
of the code is a ground for dismissal “or other
disciplinary steps”. The difficulties with the argument are
(a) that Item 14A does not render
disciplinary steps compulsory in all cases;
(b) there is in any event no evidence
before me that the steps taken by the first respondent were in
conflict with its employment
policies relating to discipline, and
indeed no such case was sought to be made in the founding affidavit.
[10] The application for relief under
this heading must accordingly fail. There is no reason to go into
other questions which the
claim raises, including whether this court
is the right place to make the claim.
THE APPOINTMENT OF THE FOURTH
RESPONDENT
[11] This is the main issue in this
case. It turns on the contention that the fourth respondent did not
meet two of the essential
requirements for the post to which she was
appointed. These were the following, under the heading
“Qualifications”.
(a) “MB.CH.B or NQF Level 7 in
Public Health”; and
(b) “Registered with the Health
Professions Council of South Africa …”.
[12] The collective agreement referred
to earlier deals with the first respondent’s employment
practices policy. In its founding
affidavit the applicant makes the
undisputed points that the provisions of the collective agreement are
peremptory and form part
of the first respondent’s
constitutional duty to engage in collective bargaining and to
recognise and respect collective
bargaining in terms of s 23 of the
Constitution; and that the collective agreement is given further
statutory force by the provisions
of
s 23
of the
Labour Relations
Act, 1995
. Clause 11 of the collective agreement is to the effect
that any dispute arising as to the application of the agreement shall
be determined in accordance with the dispute resolution procedures of
the Bargaining Council. This is what is required by
s 24
of the
Labour Relations Act.
[13
] When it discovered that at the
time of her employment the fourth respondent was not in fact
registered with the Health Professions
Council the applicant referred
the matter to the South African Local Government Bargaining Council.
Conciliation failed and an
arbitration followed. The award was made
on 12 July 2011. The arbitrator found that the first respondent had
indeed acted in
breach of the collective agreement. Under the
impression (which counsel before me appeared to accept was wrong)
that she did not
have the power to set aside the appointment, the
arbitrator made an order (consequent upon her finding as to breach of
the collective
agreement) that the first respondent must remedy its
failure in the application of the collective agreement within a
period of
three months.
[14] It turned out that the fourth
respondent had previously been registered as a medical practitioner,
but that at the time of
her appointment her registration had lapsed.
It was reinstated retrospectively during the course of the three
month period allowed
by the arbitrator, and the fourth respondent
continued to hold the office to which she had been appointed.
[15] Far from challenging the decision
of the arbitrator, the applicant embraced it by applying to the
Labour Court to have the
award made an order of court in terms of
s
158
(1) (c) of the
Labour Relations Act. The
award had already been
certified as binding in terms of
s 143
(3) of that Act. The reason
this relief was sought from the Labour Court lay in the applicant’s
intention to pursue contempt
proceedings against the first respondent
on the basis that, despite the restoration of the fourth respondent’s
registration
as a medical practitioner, there had not been compliance
with the arbitrator’s award. The Labour Court dismissed the
application
because it was unnecessary given
s 143
(4) of the
Labour
Relations Act, which
is to the effect that a failure to comply with
an arbitration award that requires the performance of an act may be
enforced by
way of contempt proceedings instituted in the Labour
Court.
[16] The significance of the
applicant’s failure in any way to challenge the arbitrator’s
award is apparent from
s 143
(1) of the
Labour Relations Act. It
reads as follows.
“An arbitration award issued by a
commissioner is final and binding and it may be enforced as if it
were an order of the Labour
Court, unless it is an advisory
arbitration award.”
[17] The applicant did not bring
contempt or any other proceedings against the first respondent based
upon its view that the retrospective
registration of the fourth
respondent as a practitioner did not remedy the failure to comply
with the collective agreement, as
required by the arbitrator. This
was despite the fact that the judgment of the Labour Court pointed
out that the remedy of contempt
proceedings was already available to
the applicant.
[18] The illegality complained of by
the applicant before the arbitrator was that, in breach of the
collective agreement, the first
respondent had appointed someone who
did not meet the minimum essential requirements for the post. The
challenge was successful.
The decision of the arbitrator was, in
terms of
s 143
(1) of the
Labour Relations Act, final
and binding.
One would have thought that was the end of the matter. The applicant
thought otherwise.
[19] In late 2011 or early 2012 the
applicant again referred the matter of the breach of the collective
agreement to the Bargaining
Council, which resulted in a second
arbitration. On this occasion the complaint was that the fourth
respondent’s foreign
medical degree did not meet the first of
the essential requirements to which I referred earlier. But the crux
of the claim in
the second arbitration was the same as the first,
namely an attempt to void the appointment of the fourth respondent on
the basis
of an unlawful breach of the collective agreement.
[20] The second arbitrator decided that
the dispute raised in the second arbitration was not in fact a
different or fresh one, and
that she lacked jurisdiction to determine
the dispute “which has already been arbitrated”. At that
time the application
to the Labour Court referred to earlier, and
relating to the first arbitration award, was still pending. It has
been suggested
on the papers that the second arbitrator declined
jurisdiction on a so-called technicality, because the matter was then
serving
before the Labour Court. That in my view is a
misinterpretation of her award. The second arbitrator held that the
issue had already
been disposed of in the first arbitration. She
merely mentioned the fact that the first award was still the subject
of an application
in the Labour Court. The second arbitrator could
not have overlooked that what was sought in the Labour Court was in
fact enforcement
of the first award.
[21] The second arbitrator proceeded to
deal with the allegation that the fourth respondent did not hold the
requisite qualification,
to cover the contingency that she was wrong
in saying that the second arbitration was incompetent. She found
that the fourth respondent
held the requisite qualification and
recorded that in her award.
[22] It is against this background that
in the present proceedings the applicant seeks the same relief as has
already been sought
twice in the forum which was appropriate, given
the provisions of the collective bargaining agreement and of the
Labour Relations Act. The
fact that on this occasion the principal
relief is accompanied by subsidiary orders designed to have this
court in effect supervise
some of the first respondent’s
employment practices (for which no authority has been cited) does not
in my view distinguish
these proceedings from what went before.
[23] Justification for this must be
sought in the founding papers. The relevant allegations may be
summarised as follows.
(a) The primary and essential
allegation remains that the appointment was unlawful as it was made
in contravention of the collective
agreement.
(b) The appointment was ultra vires,
unlawful and unconstitutional. The first respondent breached the
legality principle : executive
organs of State can only exercise the
powers conferred on them by law : their actions shall not be
arbitrary and must be rational
: the rule of law is a foundational
value.
(c) The failure of the first
respondent’s municipal manager to take what the applicant calls
“proper action” once
the unlawfulness of the fourth
respondent’s appointment was discovered is in itself unlawful
and violates Item 2 of the Code
of Practice for Municipal Staff
Members which is Schedule 2 to the Municipal Systems Act, and indeed
constitutes a violation of
s 50 of that Act.
(d) Section 50 of the Municipal Systems
Act and s 195 (1) of the Constitution set out the basic values and
principles governing
local public administration which have been
breached.
[24] Section 50 of the Municipal
Systems Act is to the effect that local public administration is
governed by the democratic values
and principles embodied in s 195
(1) of the Constitution. The section goes on to provide that a
municipality must strive to achieve
the objects of local government
set out in s 152 (1) of the Constitution and comply with the duties
set out in sections 4 (2) and
6 of the Municipal Systems Act (both of
which, like s 195 (1) of the Constitution, set out general and
important principles which,
within the sphere of public
administration, reflect the democratic values and principles
enshrined in the Constitution). The following
was said on the
subject of s 195 of the Constitution in Khumalo v MEC for Education
2014 (5) SA 579
(CC), para 35.
”Section 195 provides for a
number of important values to guide decision-makers in the context of
public-sector employment.
When, as in this case, a responsible
functionary is enlightened of a potential irregularity, s 195 lays a
compelling basis for
the founding of a duty on the functionary to
investigate and, if need be, to correct any unlawfulness through the
appropriate avenues.
This duty is founded, inter alia, in the
emphasis on accountability and transparency in s 195 (1) (f) and (g)
and the requirement
of a high standard of professional ethics in s
195 (1) (a). Read in the light of the founding value of the rule of
law in s 1
(c) of the Constitution, these provisions found not only
standing in a public functionary who seeks to review through a court
process
a decision of its own department, but indeed they found an
obligation to act to correct the unlawfulness, within the boundaries
of the law and the interests of justice.”
[25] The difficulty for the applicant
is that in these proceedings it exceeds the boundaries of the law and
disregards the interests
of justice. It sought the corrective
measures which it says the applicant ought to have sought itself (and
illegally failed to
seek itself) in the correct forum, and received
its (the applicant’s) relief. It embraced its relief, seeking
to have it
made an order of court (albeit unnecessarily). It
believes that the only way in which the first respondent could comply
with the
order of the first arbitrator would be by removing the
fourth respondent from office and re-advertising the position. If it
is
right then its remedy is the contempt proceedings provided by
s
143
(4) of the
Labour Relations Act.
[26
] If the applicant’s
interpretation of the relief it obtained in the first arbitration is
incorrect, it is nevertheless bound
by that outcome having failed to
take the award on review to the Labour Court.
[27] In either event the issue as to
whether the first respondent was obliged to terminate the appointment
of the fourth respondent
has been adjudicated upon. It is
unsurprising, then, that the first respondent raises a plea of res
judicata. To the extent that
there might be some debate about nice
distinctions between the first arbitration, the second arbitration
and these proceedings,
the position is that in appropriate cases the
strict requirements for a plea of res judicata, especially those of
“same relief”
and “same cause of action”, may
be relaxed. (See Pratt v Firstrand Bank Limited (696/13)
[2014]
ZASCA 110
(11 September 2014), para 11.) In my view the plea in this
case is good. I do not believe that there is any real difference
between
the cause of action pursued in arbitration, and the one
sought to be established here. If I am wrong in that, then this is a
case
where the strict requirement must be relaxed in the interests of
justice.
[28] Furthermore what was said in
paragraph 57 of the judgment in Gcaba v Minister for Safety and
Security
2010 (1) SA 238
(CC) applies in this case.
“Following from the previous
points, forum-shopping by litigants is not desirable. Once a
litigant has chosen a particular
cause of action and system of
remedies (for example, the structures provided for by the LRA) she or
he should not be allowed to
abandon that cause as soon as a negative
decision or event is encountered.”
That is precisely the course which the
applicant asks this court to sanction. It cannot be permitted. If
the allegation made by
the applicant that the appointment of the
fourth respondent was unlawful because it breached the collective
bargaining agreement
is removed from the mix of facts and
circumstances relied upon in the present proceedings, nothing would
be left of the cause of
action. The issue as to whether that breach
occurred has already been decided. In reality it is the applicant’s
dissatisfaction
with the remedy it was given which brings it to this
court. The power to correct the remedy (assuming it can and should
be done)
resides in the Labour Court.
[29] In the circumstances I conclude
that the relief relating to the appointment of the fourth respondent
must also be denied.
CONCLUDING REMARKS
[30] In the light of the aforegoing I
have found it unnecessary to deal with the issue of the inordinate
delay in the institution
of the present proceedings. If the relief
sought by the applicant were to be granted it would have the effect
of setting aside
the fourth respondent’s appointment to a post
which she has occupied now for some six years.
[31] It has also been unnecessary to
consider the question as to whether the applicant’s claim to
standing under s 38 of the
Constitution is properly made in this
case. Counsel for the applicant argued that the applicant could
bring this application
in much the same way (he argued) as a
ratepayer could, to protect his or her interests in proper and lawful
municipal government.
Given the peculiar interests and raison d’
etre of the applicant, that would raise the question as to whether
“the
right remedy is sought by the right person in the right
proceedings”. (See Giant Concerts CC v Rinaldo Investments
(Pty)
Limited
2013 (3) BCLR 251
(CC) para 34, and the reference to
the judgment of the Supreme Court of Appeal in the same matter given
in note 39.)
I make the following order.
The application is dismissed with
costs, including the costs of two counsel.
OLSEN J
Date of Hearing: TUESDAY, 24
FEBRUARY 2015
Date of Judgment: THURSDAY, 09 APRIL
2015
For the Applicants: MR J NXUSANI
Instructed by: TOMLINSON MNGUNI
JAMES
2 NCONDO DRIVE
LEVEL 2, NEDBANK BUILDING
UMHLANGA
DURBAN
(Ref.: E Geldenhuys/23/S0052/14)
(Tel.: 031 – 566 2207)
For the 1ST Respondent: MR M
PILLEMER SC and Ms L R NAIDOO
Instructed by:HUGHES-MADONDO INC.
UNIT 7, LEVEL 2
THE CENTENARY BUILDING
QUADRANT 1
30 MERIDIAN DRIVE
UMHLANGA NEW TOWN
UMHLANGA ROCKS
DURBAN
(Ref.: Ms Olivia Swardling/ud/EM69)
(Tel.: 031 – 584 6969)