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[2011] ZAFSHC 195
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Tlali v Mantsopa Local Municipality and Others (A78/11) [2011] ZAFSHC 195 (1 December 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A78/11
In
the appeal between:
MOEKETSI
FREDDIE TLALI
…................................................
Appellant
and
MANTSOPA LOCAL
MUNICIPALITY
…......................
First
Respondent
CONSTANCE L M
RAMPAI
…................................
Second
Respondent
MAPULENG ANNA
MAJARA
….................................
Third
Respondent
_____________________________________________________
CORAM:
HANCKE, J
et
VAN ZYL, J
et
NAIDOO, AJ
_____________________________________________________
HEARD ON:
28 NOVEMBER 2011
_____________________________________________________
JUDGMENT BY:
HANCKE, J
DELIVERED ON:
1 DECEMBER 2011
_____________________________________________________
[1] This is an appeal
against the judgment of C J Musi, J dismissing the appellant’s
application in which the appellant sought
a declaratory order that a
resolution passed by the first respondent on 28 August 2009 be
declared null and void, thus of no force
and effect on the grounds of
being unlawful and/or unconstitutional.
[2] A further prayer
asking for the resolution to be set aside and for the reinstatement
of the appellant in his position as manager
technical services was
abandoned by the appellant during the proceedings in the court
a
quo
.
[3] The sole issue that
remained to be adjudicated upon was appellant’s entitlement to
a declaratory order that the resolution
passed by the first
respondent on 28 August 2009 be declared null and void, thus of no
force or effect on the grounds of being
unlawful.
[4] Before arguing the
merits, Mr. Grobler, on behalf of the respondents, submitted that in
view of the abandonment of prayers 1.2
and 2, the court
a quo
was merely to deal with the application on the principles of
administrative law. He argued that it was an abandonment of fact and
not based on an incorrect understanding of the law and that the
appellant’s present approach was not legally attainable.
[5] As far as the powers
of a court of appeal are concerned, it is necessary to have regard to
section 22 of the Supreme Court Act,
59 of 1959, which provides that:
“
The
appellate division or a provincial division, or a local division
having appeal jurisdiction, shall have power-
(a)
.....
(b)
to
confirm, amend or set aside the judgment or order which is the
subject of the appeal and to give any judgment or make any order
which the circumstances may require.”
In his discussion of
section 22 H J Erasmus
Superior Court Practice
stated the
following on A1-60:
“
Give any
judgment or make any order which the circumstances may require.
”
“The powers conferred upon a court of appeal by the provisions
of the paragraph are not limited to matters arising
directly from the
appeal itself: a court of appeal has wide powers to give a judgment
or make an order which the circumstances
of a particular case might
require.”
I am
therefore of the view that the appellant is entitled to follow the
present approach and to raise new issues of law.
1
[6] It appears from the
papers that during August 2004 the appellant and the first respondent
entered into a written fixed term
contract of employment in terms
whereof the appellant was appointed as manager: technical services of
the first respondent; the
contract would commence on 1 September 2004
and terminate on 5 December 2007; it also appears that the contract
would terminate
automatically on 5 December 2007, unless the parties
thereto before that date agreed to renew or extend the contract. It
was also
agreed that a renewal or extension of the contract may be on
the same or different terms.
[7] Two renewals
occurred: on 29 March 2006 the first respondent resolved that the
appellant’s employment contract be renewed
for a period of two
years, such renewal to be effective from 6 December 2007 to 5
December 2009, on the same conditions as were
then applicable to the
appellant.
[8] The second renewal
occurred on 16 April 2008 when the first respondent resolved that the
appellant’s employment contract
be renewed for a period of one
year, such renewal to be effective from 6 December 2009 to 5 December
2010.
[9] However, on 28 August
2009, the first respondent resolved that, notwithstanding the second
renewal, the appellant’s employment
contract would expire on 9
December 2009 (as opposed to 5 December 2010 as per the second
renewal). The first respondent advanced
the following in support of
its resolution:
“
The contract
was renewed before expiry, and this matter to be corrected by
council.”
[10] On 10 December 2009
the appellant was served with a certificate of service, issued by the
first respondent, which recorded
that the termination date of the
appellant’s employment contract was 9 December 2009. The reason
for the termination was
“contract expired”.
[11] In terms of the
provisions of section 120 of Local Government: Municipal Systems Act,
No. 32 of 2000, (“the Act”),
the Minister, during 2006,
made certain regulations that pertain to managers appointed in terms
of section 56 of the Act and in
particular regulations that pertain
to employment contracts as contemplated in section 57 of the Act.
After having heard argument
in relation to regulation 17 the court
a
quo
held that:
“
The argument
relating to regulation 17(2) is bafflingly bad. The regulation deals
with the employer – employee relationship
between the first
respondent and its employees. The applicant argues that the first
respondent dismissed him unlawfully without
adherence to the
principles of natural justice and a fair procedure. If the first
respondent as employer takes a decision that
falls foul of regulation
17 then the employee’s recourse is via the internal dispute
resolution structures and the Labour
Relations Act. This court has no
jurisdiction to deal with such issues. The Labour Court was created
to adjudicate such disputes.
If the first respondent takes a decision
as an employer, such decision is not an administrative decision.”
[12]
Mr. Van Niekerk, counsel for the appellant, submitted that the court
a quo
erred
in not distinguishing between the
lawfulness
of the termination of the appellant’s
services
per se
and
the
fairness
of
such termination and therefore not finding that what the appellant
sought was to declare the act of terminating his services
as unlawful
and as such of no force and effect. The court therefore erred in
concluding that it was not vested with the necessary
jurisdiction to
grant the declaratory order sought by the appellant.
[13] It is important to
note that the appellant’s employment contract was for a fixed
term, extended on 16 April 2008, for
a further period of one year
with effect from 6 December 2009 to 5 December 2010.
[14]
In
FEDLIFE ASSURANCE LTD v WOLFAARDT
2002 (1) SA
49
(SCA) the court dealt with the question of whether a claim for
damages arising from the premature termination of a fixed term
contract
of employment was a matter that fell within the exclusive
jurisdiction of the Labour Court as provided for in
section 157(1)
of
the
Labour Relations Act, 66 of 1995
. Nugent AJA (as he then was)
stated the following on p. 58:
“
[
17]
The 1995 Act does not expressly abrogate an employee's common-law
entitlement to enforce contractual rights and nor do I think
that it
does so by necessary implication. On the contrary there are clear
indications in the 1995 Act that the Legislature had
no intention of
doing so.
[18] The clearest indication that it
had no such intention is s 186
(b)
, which extends the meaning
of 'dismissal' to include the following circumstances:
'(A)n employee reasonably expected the
employer to renew a fixed term contract of employment on the same or
similar terms but the
employer offered to renew it on less favourable
terms, or did not renew it.'
It is significant that although the
Legislature dealt specifically with fixed-term contracts in this
definition it did not include
the premature termination of such a
contract notwithstanding that such a termination would be manifestly
unfair. The reason for
that is plain: The common-law right to enforce
such a term remained intact and it was thus not necessary to declare
a premature
termination to be an unfair dismissal. The very reference
to fixed term contracts makes it clear that the Legislature
recognised
their continued enforceability and any other construction
would render the definition absurd.”
[15]
The question whether a dispute falls within the terms of
section 191
of the
Labour Relations Act, No. 66 of 1995
, depends on what is in
dispute. The fact that an unlawful dismissal might also be unfair
appears to be irrelevant in this regard.
A dispute falls within the
terms of
section 191
of the
Labour Relations Act only
if the fairness
of the dismissal is the subject of the employee’s complaint.
The present matter is one where the subject
of the dispute is the
lawfulness
of the dismissal, and the fact that it might also be unfair is quite
incidental, for that is not what the employee’s complaint
is
about, see
FEDLIFE ASSURANCE LTD v WOLFAARDT
,
supra
, at 61 par. [27].
[16] The fact that the
appellant’s claim is based on a breach of contract also confers
jurisdiction on the High Court. In
BOXER SUPERSTORES MTHATHA
AND ANOTHER v MBENYA
2007 (5) SA 450
(SCA) Cameron JA stated
the following on 453 – 454:
“
The
novel question it raises is whether an employee may sue in the High
Court for relief on the basis that the disciplinary proceedings
and
the dismissal were 'unlawful', without alleging any loss apart from
salary. In my view, the answer can only be Yes. This Court
has
recently held that the common-law contract of employment has been
developed in accordance with the Constitution to include
the right to
a pre-dismissal hearing... This means that every employee now has a
common-law contractual claim - not merely a statutory
unfair labour
practice right - to a pre-dismissal hearing. Contractual claims are
cognisable in the High Court. The fact that they
may also be
cognisable in the Labour Court through that court's unfair labour
practice jurisdiction does not detract from the High
Court's
jurisdiction.”
See
also
SOUTH AFRICAN MARITIME SAFETY AUTHORITY v McKENZIE
2010 (3) SA 601
(SCA) at p. 625 par. [46] – [47].
[17] It is clear that the
dispute as formulated in prayer 1.1 of the appellant’s notice
of motion pertains to the
lawfulness
of the 28 August 2009
resolution. The court
a
quo
was
therefore vested with the necessary jurisdiction to entertain the
present application.
[18] The court
a
quo
should
have found that the second renewal and consequent extension of the
appellant’s fixed term employment contract was effected
in
accordance with clause 34 of the appellant’s employment
contract and regulation 17(1)(a).
2
Therefore, any premature
termination of the appellant’s fixed term contract, as
extended, would constitute a repudiation of
such contract and as such
be unlawful. The 28 August 2009 resolution, which purported to
terminate the services of the appellant
due to the fact that “the
contract was renewed before expiry and this matter to be corrected by
council” is nonsensical
as the appellant’s contract was
extended, which extension could only be effected prior to the expiry
of the contract and
therefore it was not a valid reason recognised by
regulation 17(2) or any other law.
3
[19] The said resolution
was thus contrary to the provisions of regulation 17(2) which
provides that the first respondent may only
terminate the services of
the appellant “for any sufficient reason recognised by law”.
The first respondent could therefore
not lawfully adopt a resolution
that was contrary to regulation 17(2).
[20] Accordingly the
appeal succeeds with costs. The order of the court
a
quo
is
set aside and substituted with the following order:
“
1.
Resolution number 1469/28/8/2009 passed by Mantsopa Local
Municipality on 28 August 2009 is hereby declared null and void
ab
initio
thus of no force and effect on the grounds of being unlawful;
2. Respondents are
ordered jointly and severally to pay the costs of the application.”
________________
S.P.B. HANCKE, J
I
agree.
____________
C. VAN ZYL. J
I
agree.
_____________
S. NAIDOO, AJ
On
behalf of the appellant: Adv. D. van Niekerk
Instructed
by:
Majola
Attorneys
BLOEMFONTEIN
On
behalf of the respondents: Adv. S. Grobler
Instructed
by:
Mabalane
Seobe Inc
BLOEMFONTEIN
/sp
1
See
ALEXKOR LTD AND ANOTHER v THE RICHTERSVELD COMMUNITY
AND OTHERS
[2003] ZACC 18
;
2004 (5) SA 460
(CC) where it was decided that it
was open for a party to raise a legal contention which it had
previously abandoned in the SCA
as long as the contention was
covered by the pleadings and the evidence and its consideration
involve no unfairness to the other
party.
2
Regulation
17(1)(a) reads as follows:
“
(1)
The employment contract will terminate-
(a) automatically on
expiry of the term referred to in the contract,
subject to any
extension or renewal
.”
3
Regulation
17(2) provides as follows:
“
The
employer will be entitled to terminate the employee’s contract
for any sufficient reason
recognised
by law
,
provided that the employer must comply with its disciplinary code
and procedures, in the absence of which disciplinary code
and
procedures of the South African Local Government bargaining Council
will apply, as well as in accordance with Labour Relations
Act, 1995
(Act No. 66 of 1995).” (My italics)