Mokapane v Phumelela Local Municipality and Others (1549/2006) [2006] ZAFSHC 156 (24 August 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2006
>>
[2006] ZAFSHC 156
|

|

Mokapane v Phumelela Local Municipality and Others (1549/2006) [2006] ZAFSHC 156 (24 August 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 1594/2006
In
the matter between:-
MAHLOMOLA
FRANCIS MOKAPANE
Applicant
and
PHUMELELA LOCAL
MUNICIPALITY
1
st
Respondent
THE
MUNICIPAL COUNCIL OF THE
2
nd
Respondent
PHUMELELA LOCAL
MUNICIPALITY
THE
MAYOR OF THE PHUMELELA
3
rd
Respondent
LOCAL
MUNICIPALITY
_____________________________________________________
HEARD
ON:
10
AUGUST 2006
_____________________________________________________
JUDGMENT
BY:
H.M.
MUSI J
_____________________________________________________
DELIVERED ON:
24
AUGUST 2006
[1] This is an
application for the review and setting aside of a decision of the
second respondent to terminate the employment contract
of the
applicant. The background to the dispute is set out hereunder.
[2] The first respondent
is a local municipality established in terms of the provisions of
section 12
of the
Local Government: Municipal Structures Act 117 of
1998
read with
section 2
of the
Local Government: Municipal Systems
Act 32 of 2000
. The second respondent is the council of the first
respondent through which the first respondent acts. The third
respondent is
the mayor of the first respondent who is cited herein
in his capacity as such. I shall for the sake of convenience refer
to the
first and second respondents collectively as the municipality
and to the third respondent as the mayor.
[3] The applicant was
employed by the municipality as Manager Finance with effect from 1
July 2003 on a five years term contract.
A contract of employment
setting out the terms and conditions of his employment was duly
written but was never signed by the parties.
However, it can be
accepted that the terms set out in such unsigned document
incorporating a disciplinary code were applicable to
him. The
applicant was dismissed on 24 February 2006 by the decision of the
municipality now under attack. The decision followed
upon the
conduct of a disciplinary enquiry that found the applicant guilty on
charges of misconduct and recommended his dismissal.
[4] The ground on which
the applicant attacks the decision to terminate his employment
contract is that a wrong procedure was followed
in reaching it. It
will be noted that the whole process was initiated by the municipal
manager, who is the officer to whom the applicant
was accountable.
The municipal manager first appointed a prosecutor to investigate the
allegations of misconduct and if there was
substance in the
allegations, to prosecute the applicant. He also appointed the
person who presided over the disciplinary hearing.
In doing so the
municipal manager acted in terms of the disciplinary code provided
for in the Collective Agreement concluded at
the South African Local
Government Bargaining Council (the SALGA code). This code is
different from the disciplinary code that is
provided for in the
written agreement of employment to which the applicant is subject
(the employer’s code). In terms of the latter
code, the
proceedings are initiated, not by the municipal manager, but by the
mayor. Once the mayor has decided that a disciplinary
enquiry must
be initiated he refers the matter to his council for a decision and
thereafter he acts on instructions of the council.
He, and not the
municipal manager, appoints a prosecutor and a presiding officer.
[5] The applicant’s
basic contention is that the municipality was bound to follow its own
disciplinary code and that since it followed
a wrong code, the whole
process of terminating his contract was completely irregular and
reviewable. I should mention at this juncture
that it is not in
dispute that the SALGA code was not applicable to the applicant.
[6] In opposing the
application, the respondents raised
in
limine
the issue of jurisdiction. In this regard, it is pointed out that
the employer’s code specifically refers to the rights that
employees
have under the Labour Relations Act 66 of 1995 (the LRA)
which implies that an employee aggrieved by his/her dismissal must
follow
the dispute resolution mechanism of the LRA. Reference was
made to clause 19(n) of the employer’s code and it was contended
that
the applicant was bound to refer his dispute to either the SALGA
Bargaining Council or the Council for Conciliation Mediation and
Arbitration (the CCMA). Mr. Cronje, for the respondents, elaborated
on this contention in argument and submitted that this court
has no
jurisdiction in the matter. He cited
inter
alia
the cases of
WESTERN
CAPE WORKERS ASSOCIATION v MINISTER OF LABOUR
[2006] 1 BLLR 79
(LC) at 80 H – J;
HLOPE
AND OTHERS v MINISTER OF SAFETY AND SECURITY & 7 OTHERS
[2006] 3 BLLR 297
(LC) at 303.
[7] In response Mr.
Daffue, for the applicant, referred to section 157(2) of the LRA
which confers concurrent jurisdiction on the
Labour Court with this
court in respect of alleged violations of constitutional rights
arising
inter
alia
from employment relations. He cited a number of judgments, reported
and unreported, in this regard in support of his submission
that this
court has jurisdiction. It is unnecessary to go into details in this
regard, for Mr. Daffue then made it clear that the
applicant’s case
was that the decision under attack is an administrative action as
defined in section 1 of the Promotion of Administrative
Justice Act
No. 3 of 2000 (PAJA) and is therefore susceptible to review under
section 6 read with section 3 of that Act. Mr. Cronje
then conceded
that on that basis this court does have jurisdiction.
[8] I therefore proceeded
to hear the matter on the basis that it is a review under PAJA in
respect of which the jurisdiction of this
court is beyond dispute.
The first and foremost question therefore to be considered is whether
the decision in question is an administrative
action, for if it is
not, then that will be the end of the matter.
[9] Now an administrative
action is defined in section 1 of PAJA. Subsection (a)(ii) thereof
is more relevant for present purposes,
for we are here dealing with a
decision of a municipality, which is an organ of State. The question
is whether it can be said that
the municipality was “exercising a
public power or performing a public function in terms of any
legislation” when dismissing
the applicant and whether such
decision adversely affected the applicant’s rights and had a
“direct, external legal effect”.
[10] The part of the
definition relating to whether the decision has affected the rights
of any person can be left out of the reckoning
since the applicant
will clearly have been adversely affected. Moreover it will serve no
purpose to deal separately with this part
together with the part
relating to whether the decision had a direct, external legal effect,
in view of the views expressed by Nugent
JA in
GREY’S
MARINE HOUT BAY (PTY) LTD AND OTHERS v MINISTER OF PUBLIC WORDS AND
OTHERS
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) at par. 23 to the effect that the two
qualifications in tandem merely serve “to emphasize that
administrative action impacts
directly and immediately on
individuals”.
[11] In my view, there
are insurmountable obstacles in the way of the applicant in this
matter. Firstly, although it is the decision
of the municipality to
dismiss that is sought to be reviewed, the real target is the
findings and recommendations of the disciplinary
enquiry that
preceded the decision. It will be noted that the municipal council
merely endorsed the recommendations of the disciplinary
tribunal. The
gist of the applicant’s complaint is that the entire disciplinary
process was flawed because it was initiated and
conducted in terms of
the SALGA code instead of the employer’s code. The applicant does
not attack or challenge the findings of
the disciplinary enquiry as
such but rather the procedure by which the disciplinary enquiry was
initiated, constituted and conducted.
But one cannot separate the
findings from the procedure of the disciplinary enquiry. If the
procedure was fatally flawed, the resultant
findings are tainted and
invalid, if not a nullity.
[12] For all practical
purposes what the applicant seeks is a review of the findings of the
disciplinary tribunal. Two problems arise
from this. Firstly, the
chairman of the disciplinary enquiry should have been joined, which
has not been done. The application
is therefore defective on the
basis of non-joinder.
[13] Secondly,
decisions/findings of domestic tribunals do not constitute
administrative action as defined in PAJA. See
KLEIN
v DAINFERN COLLEGE AND ANOTHER
2006 (3) SA 73
(T) at 85 C – J. Incidentally this judgment was
cited by counsel for the applicant in the additional heads of
argument that he
filed with the consent of counsel for the
respondents after the hearing had been concluded.
[14] Now counsel for the
respondents focused on the conduct of the disciplinary enquiry upon
whose findings the impugned decision
was based. He submitted that
although the employer’s code was not followed, there was
nonetheless substantial compliance with
its provisions, so that at
the end of the day, the applicant received a fair hearing. Counsel
pointed out the following: a non-partisan
independent lawyer from
outside the municipality was appointed to prosecute; likewise the
presiding officer was a non-partisan independent
professional; the
applicant was given proper notice of the disciplinary hearing; he
was furnished with a comprehensive charge sheet
and given a full
opportunity to state his case, which he fully made use of. In short,
counsel submitted that the
audi
alteram partem
rule
was applied and the principles of natural justice complied with.
[15] Mr. Cronje also
contended that though the municipal manager was not, in terms of the
employer’s code, the person designated
to set up the disciplinary
enquiry and appoint the prosecutor and the presiding officer, his
whole conduct was endorsed and ratified
by the mayor and the
municipal council as well as the then Exco
representative.
In this regard counsel cited the judgment of my brother Hancke J in
MOLEFE
v DIHLABENG LOCAL MUNICIPALITY AND OTHERS
2003 (4) ALL SA 269
(O) at 278 c – 280 e. I understood the import
of the submission made on behalf of the respondents to be that even
if the decision
in question were to be found to be an administrative
action it is not susceptible to review because it was not
procedurally unfair.
[16] It will be seen from
the above that counsel for the respondents did not specifically
address the question of whether the decision
in question constitutes
administrative action as defined. Now even if one were to proceed on
the assumption that the decision as
such can properly be considered
separately from the findings of the disciplinary enquiry on which it
is based, still the decision
is, in my view, not an administrative
action and I now turn to discuss this issue.
[17] For his submission
that the decision is an administrative action, counsel for the
applicant referred to
GREY’S
MARINE HOUT BAY (PTY) LTD AND OTHERS v MINISTER OF PUBLIC WORKS AND
OTHERS
,
supra
and
PLATINUM
ASSET MANAGEMENT (PTY) LTD v FINANCIAL SERVICES BOARD AND OTHERS;
ANGLO RAND CAPITAL HOUSE (PTY) LTD AND OTHERS v FINANCIAL
SERVICES
BOARD AND OTHERS
2006 (4) SA 73
(WLD). Now in the
GREY’S
MARINE
-case,
Nugent JA following the comments referred to in paragraph [10] above
proceeded to formulate the following broad definition
of
administrative action at paragraph 24:
“
Administrative
action is rather, in general terms, the conduct of the bureaucracy
(whoever the bureaucratic functionary might be)
in carrying out the
daily functions of the State, which necessarily involves application
of policy, usually after its translation
into law, with direct and
immediate consequences for individuals or groups of individuals.”
This interpretation of
section 1 of PAJA was followed in the
PLATINUM
ASSET MANAGEMENT
-case,
supra
.
In both cases it was found that the conduct or decision complained
of answered to the definition aforesaid. The matter was put
as
follows in the
GREY’S
MARINE
-case
at paragraph 28:
“
The
Minister's decision was made in the exercise of a public power
conferred by legislation, in the ordinary course of administering
the
property of the State, and with immediate and direct legal
consequences (at least for Bluefin).....”
[18] The instant case is,
on the facts, clearly distinguishable from the above cases. In this
case the municipality was not carrying
out its daily functions
involving application of policy or law. It was acting in its
capacity as employer in terms of a private
contract with its
employee. In my view, the instant case falls squarely within the set
of facts that obtained in
CAPE
METROPOLITAN COUNCIL v METRO INSPECTION SERVICES CC
2001 (3) SA 1013
(SCA) and must be decided similarly. Now the latter
case did not deal with the provisions of PAJA but rather with the
provisions
of the empowering section 33 of the Constitution. But, as
was stated in
GREY’S
MARINE
,
supra
at paragraph 28, there are “no grounds for distinguishing
administrative action as contemplated by section 33 of the
Constitution
from administrative action envisaged by PAJA ......”.
[19] The
CAPE
METROPOLITAN
-case
involved cancellation by a municipal council of a contract with a
service provider engaged by the council to collect levies
on its
behalf. The contract was cancelled on the basis that the service
provider had defrauded the council. The court expressed
itself as
follows and I can do no better than repeat the whole of paragraph 18:
[18] The appellant is a public
authority and, although it derived its power to enter into the
contract with the first respondent from
statute, it derived its power
to cancel the contract from the terms of the contract and the common
law. Those terms were not prescribed
by statute and could not be
dictated by the appellant by virtue of its position as a public
authority. They were agreed to by the
first respondent, a very
substantial commercial undertaking. The appellant, when it concluded
the contract, was therefore not acting
from a position of superiority
or authority by virtue of its being a public authority and, in
respect of the cancellation, did not,
by virtue of its being a public
authority, find itself in a stronger position than the position it
would have been in had it been
a private institution. When it
purported to cancel the contract it was not performing a public duty
or implementing legislation;
it was purporting to exercise a
contractual right founded on the consensus of the parties in respect
of a commercial contract. In
all these circumstances it cannot be
said that the appellant was exercising a public power. Section 33 of
the Constitution is concerned
with the public administration acting
as an administrative authority exercising public powers, not with the
public administration
acting as a contracting party from a position
no different from what it would have been in had it been a private
individual or institution.”
See also
SAPU
& ANOTHER v NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE
SERVICE & ANOTHER
[2006] 1 BLLR 42
LC especially at 55 I – 56 B.
[20]
It is noteworthy
that the applicant wants to hold the respondents to the terms and
conditions of the contract of employment, for he
says that they
should have proceeded in terms of the code provided for therein. The
respondents, on the other hand, dismissed him
precisely because they
allege that he breached such contract by rendering himself guilty of
misconduct. This typifies the matter
as purely a contractual dispute
relating to the employment relationship of the parties and has got
nothing to do with the municipality’s
public functions.
[21] The one judgment
that may be said to support the applicant’s case is
NELL
v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT & ANOTHER
[2006] 7 BLLR 716
(T) in which it was held that the decision of the
Director General of the Department of Justice and Constitutional
Development to
dismiss a Senior Deputy Master of the High Court was
an administrative action. This case is, however, clearly
distinguishable from
the instant case. The applicant therein
occupied a senior public office, being employed as a public servant
whose terms and conditions
of employment were governed by statute,
namely, the Public Service Act 103(P) of 1994 and the Public Service
Staff Code. In dismissing
him, the Director General was clearly
carrying out his daily public administration functions as head of the
department. The facts
in
POPCRU
& OTHERS v MINISTER OF CORRECTIONAL SERVICES & OTHERS
[2006]
4 BLLR 385
(E) are distinguishable for similar reasons.
[22] In the additional
heads of argument filed after the hearing, counsel for the applicant
belatedly raises as an alternative a new
ground. He submits that in
the event of it being found that the decision to dismiss is not an
administrative action, it should nonetheless
be reviewed on the basis
of the principles of natural justice. He cited
KLEIN
v DAINFERN
,
supra
at 79 D – 83 F. It is trite that an applicant must stand or fall
by his/her case as pleaded in the founding affidavit. The applicant
pleaded a case founded on breach of the right to a procedurally fair
administrative action under PAJA and that was the basis on which
the
matter was argued. Moreover such review would be that of the
findings of the domestic tribunal on which the decision was based
and
the chairman thereof has not been joined as I have already indicated.
For an example of which parties should be joined in matters
of this
nature, see the
POPCRU
-case,
supra
.
In any event, I find myself in agreement with counsel for the
respondents that there has been substantial compliance with the
requirements
of natural justice in this case.
[23] In conclusion, it
should be noted that the employer’s code provides for a right of
internal appeal or to refer the dismissal
dispute to the SALGA
Bargaining Council or the CCMA. The intention was clearly that an
aggrieved employee like the applicant should
follow the simpler and
cheaper dispute resolution mechanism of the LRA. Indeed the
applicant must have been aware of this when he
initially referred the
dispute to the Bargaining Council for conciliation. His explanation
that he had taken such a step because
of wrong legal advice sounds
hollow. That was in fact the correct route to follow, in terms of
which if conciliation failed, the
matter would, as a dismissal on
account of misconduct, have proceeded to arbitration and thereafter,
if needs be, to the Labour Court
for review. What the applicant has
now done is to try to resolve a pure employment dispute by invoking
constitutional issues and
clothing it as an instance of procedurally
unfair administrative action. Interestingly, in his papers the
applicant was cautious
to avoid using the term “unfair”
preferring rather the word “unlawful” to describe the alleged
administrative action. This
is obviously because the word “unfair”
evokes the notion of an unfair dismissal, which would have suggested
the applicability
of the provisions of the
Labour Relations Act. But
then, as the saying goes, the applicant has made his bed. He must
now sleep on it.
[24] The
application is dismissed with costs.
___________
H.M. MUSI, J
On
behalf on the applicant: Adv. J.P. Daffue
Instructed by:
Lovius
Block Attorneys
BLOEMFONTEIN
On
behalf of second to third
respondents: Adv. P.R.
Cronje Instructed by:
Naudes
Attorneys
BLOEMFONTEIN
/sp