Sesele v Matjhabeng Local Municipality and Others (3748/2004) [2005] ZAFSHC 1 (27 January 2005)

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[2005] ZAFSHC 1
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Sesele v Matjhabeng Local Municipality and Others (3748/2004) [2005] ZAFSHC 1 (27 January 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
Nr: 3748/2004
In
the matter between:
RANTSOEU
SYLVESTER BENNET SESELE
Applicant
And
MATJHABENG
LOCAL MUNICIPALITY
First Respondent
SJ
LEEUW: EXECUTIVE MAYOR,
MATJHABENG
LOCAL MUNICIPALITY
Second Respondent
JUDGMENT:
MUSI
J
HEARD ON:
9
DECEMBER 2004
DELIVERED ON:
27
JANUARY 2005
[1] The applicant is the
Municipal Manager of Matjhabeng Local Municipality, which has its
head office at Welkom, being the first
respondent herein (the
Council). The applicant was appointed to this position in terms of a
written contract of employment for a
five years term with effect from
5 December 2001. The contract is annexed to the applicant’s
founding affidavit and marked “A”
(the contract). The second
respondent is the executive mayor of the Council. He acted
throughout the events forming the subject
of this case as
representative for the Council and has been cited in these
proceedings in such capacity. He is representing the
Council in
these proceedings as well.
[2] The dispute herein
was triggered by a letter addressed by the second respondent to the
applicant on 28 October 2004 wherein various,
serious allegations of
failure to perform his functions properly are levelled at the
applicant and on the basis of which it is proposed
to terminate his
contract. He was given 72 hours notice within which to respond to
the allegations and give reasons why his contract
should not be
cancelled, “failing which the said contract shall be deemed to have
been cancelled”. The letter is annexed to
the applicant’s
founding affidavit and marked “B”.
[3] Upon receipt of this
letter the applicant approached his attorneys of record who addressed
a letter to the Council on 29 October
2004 wherein it is indicated
that the 72 hours period given to the applicant is too short to deal
with the allegations contained
in the letter aforesaid, given the
nature and extent of the allegations. An objection was also raised
to the procedure envisaged
in Annexure “B” and the Council was
urged to follow the procedure for dismissal on the basis of
misconduct as provided for in
the Labour Relations Act 66 of 1995
(the LRA). In other words, that a disciplinary inquiry be conducted
whereat the applicant would
be afforded the opportunity to refute the
complaints against him. A demand was also made for the Council to
give an undertaking
that it would not at the meeting scheduled for 2
November 2004 deal with the issue of the applicant’s dismissal,
failing with an
urgent court application would be launched to stop
the Council from taking any decision to cancel the contract.
[4] The Council responded
to the above letter through a letter dated 1 November 2004 addressed
to the applicant’s attorneys by its
attorneys. Such letter is
annexed to the applicant’s replying affidavit and marked “RSB4”
(at page 353 of the pleadings).
The respondents simply refused to
accede to the request of the applicant’s attorneys but indicated
that the 72 hours notice could
be ignored. The letter did not,
however, give any extended period within which the applicant was to
respond. Instead it is stated
as follows:
“
Council will treat and
make a final determination with regard to the cancellation of that
contract and the time period, if necessary,
with which or after which
the said contract must be cancelled.”
By a further letter dated
1 November 2004 the applicant’s attorneys indicated that in view of
the abandonment of the 72 hours notice
period, they would not proceed
with the proposed Application but again sought an undertaking that
the Council would not terminate
the applicant’s contract at the
meeting on 2 November 2004. The response of the attorneys for the
Council was rather an impolite
refusal to provide any undertakings
and the attitude was adopted that the applicant could go to court and
that the parties would
meet there. The last paragraph of the
relevant letter, Annexure “G” to the respondent’s answering
affidavit, is interesting
and will be dealt with later in this
judgment.
[5] A deadlock having
thus developed the applicant launched the instant application on the
basis of urgency on 2 November 2004. The
application was initially
argued before Lombard J and I understood that due to the fact that it
was already late in the day, the
matter was stood down to the
following day and the issue of costs to stand over. On 3 November
2004, various points
in limine
were raised by Mr. Edeling, who
acted for the respondents, and argument proceeded on those on that
day. At the end no decision was
given and the matter was postponed
to 9 December 2004 with directions for filing of further and full
papers by the parties. An interim
order was made to the effect that
the respondents were to take no steps to suspend or terminate the
applicant’s services pending
finalization of the matter. A full
exchange of papers took place and the matter was fully argued before
me on 9 December 2004 as
an opposed motion. I reserved judgment.
[6] The orders that the
applicant seeks are set out in prayers 2.1 and 2.2 of the notice of
motion as follows:
“
2.1 that respondents
be prohibited from terminating applicant’s employment agreement
without following a fair procedure in accordance
with the
Labour
Relations Act, 66 of 1995
read with Schedule 8 thereto, alternatively
the terms and conditions of the employment agreement;
that respondents be
interdicted to terminate the applicant’s employment agreement in
accordance with the procedure set out in
and pursuant to the letter
of
28 October 2004
by second respondent;”
These prayers are in fact
in the alternative, as was intimated by Mr. Daffue, Counsel for the
applicant, during the hearing. In respect
of prayer 2.1, Mr. Daffue
moved that reference to the
Labour Relations Act and
schedule 8
thereto be deleted. This was prompted by the arguments advanced by
Mr. Watt-Pringle, the senior Counsel who had been
roped in to
represent the respondents, on the issue of jurisdiction. Mr. Daffue
thereby abandoned reliance on the provisions of
the
Labour Relations
Act and
shifted the focus to the applicant’s constitutional rights
to a fair hearing. I shall revert to the relevant submissions
shortly.
[7] The source of the
applicant’s complaint is essentially the procedure that the
respondents followed in terms of the letter dated
28 October 2004
aforesaid. He states the following in paragraph 5 of his founding
affidavit:
“
Second respondent’s
intention to cancel my employment agreement in the manner as
threatened, is not only procedurally unfair, but
in total neglect of
the terms and conditions of my employment agreement, my performance
agreements as well as the applicable Labour
Law Legislation.”
What the applicant seeks
is not that the respondents be prohibited from cancelling his
contract and thus dismissing him but rather
that they be stopped from
doing so in terms of a procedure that would allegedly violate his
constitutional right to a fair hearing.
In this context, the
validity of the grounds upon which it is proposed to dismiss him are
irrelevant. Nor is the right of the respondents
to dismiss an issue.
The applicant captured this in paragraph 2 of his replying
affidavit:
“
Before dealing with
second respondent’s affidavit I reiterate that I do not intend to
deal with all factual allegations pertaining
to the merits or
demerits of respondents’ right to cancel my employment agreement.
I refer in this regard to paragraph 7 of my
founding affidavit when I
made it clear that I should get an opportunity at the appropriate
forum to defend myself pertaining to
all allegations and evidence
that may be put forward in support of such allegations.”
I shall revert to the
merits of the applicant’s case in due course.
[8] In opposing the
application, the respondents insist that they were entitled to follow
the procedure complained of and focus on
the validity of their
grounds for the proposed dismissal. They filed voluminous documents
in this regard. Their standpoint is that
they have made out an
overwhelming case for dismissal and see it as inevitable. The
respondents denied moreover that the applicant
would suffer
irreparable harm and dispute that he was entitled to bring the
instant application. In this regard, it is pointed out
that the 72
hours notice, which is central to the applicant’s grievances, has
been waived.
[9] In his heads of
argument and in oral argument counsel for the respondents raised
in
limine
the issue of jurisdiction and it is appropriate to deal
with it at this juncture. By far the larger part of the submissions
made
on behalf of the respondents centre on this point and it
occupies about 13 out of the 18 pages of the heads of argument. The
essence
of the argument is that the dispute herein is one within the
exclusive jurisdiction of the CCMA and the Labour Court and it is
contended
that the LRA has ample remedies available to the applicant
should he be dismissed. The following is stated at paragraph 13 of
the
heads of argument:
“
It follows that in so
far as the Applicant claims a right to be dealt with in accordance
with Schedule 8 to the LRA before he may
be dismissed, he is
asserting a statutory right which he has without the need for an
interdict. The remedy or penalty, as the case
may be, for an
employer’s non-compliance with the equitable requirements of a fair
dismissal are to be found in the LRA and the
determination as to
whether the employer has complied with a fair procedure and has a
good reason for terminating the employees services,
is determined
ex
post facto
by the CCMA or Labour Court as the case may be.
Furthermore, the remedies available to the employee are those
specifically provided
by the LRA and no other.”
This argument is in line
with what was stated in
MOROPANE
v GILBEYS
DISTILLERS AND VINTNERS (PTY) LTD AND
ANOTHER
(1998) 19 ILJ 635 (LC) at 641 G – H
. In terms hereof an
employee must wait until the dismissal process has taken its full
course and then seek the remedies of compensation
or re-instatement
or re-employment through the arbitration process laid down in the LRA
before he can approach the Labour Court.
[10] Regarding the
provisions of
section 157(2)
of the LRA which confers concurrent
jurisdiction with the High Court in respect of certain labour related
matters, Mr. Watt-Pringle
submitted as follows:
“
Although the right to
fair Labour practices is a constitutional right, it does not follow
that on each occasion that an employee asserts
the right to fair
labour practices as laid down in the
Labour Relations Act, he
is
asserting a constitutional right which is justiciable by the High
Court, the Supreme Court of Appeal and the Constitutional Court.”
He submitted that
FREDERICKS AND OTHERS v MEC FOR EDUCATION AND TRAINING
EC
[2001] ZACC 6
;
2002 (2) SA 693
(CC)
does not have the effect that the High
Court would exercise concurrent jurisdiction with the Labour Court
regardless of the nature
of the specific issue. Counsel further
submitted that the applicant was not in a different position from any
other employee who
claims to be threatened with unfair dismissal and
cited authority for the view that the courts are generally reluctant
to interfere
in pending disciplinary hearings unless there are
compelling and exceptional circumstances. He referred
inter alia
to
MHLAMBI v
MATJHABENG MUNICIPALITY AND
ANOTHER
(2003) 24
ILJ 1659 (O)
at 1664
paragraph 13.
[11] Mr Daffue argued, on
the other hand, that this is a matter falling squarely within the
perview of
section 157(2)
of the LRA. The contention was that there
was a threat to the applicant’s constitutional right to a fair
hearing and administrative
justice. He referred to the
FREDERICKS-
case
supra
and to various unreported cases
of this Division. He also dealt at some length with the doctrine of
legality in terms of which the
exercise of public power by a public
functionary is lawful only in so far as the functionary acts within
the confines of the law
conferring the relevant power. This is an
argument relevant to review proceedings and the less said about it
the better.
[12] The more
authoritative case emanating from this Division on the point
in
limine
is that of
RJ RAKGOALE AND ANOTHER
v
THE PREMIER OF THE FREE STATE
, Nr. 3065/2004, a judgment of
Malherbe JP and Hattingh J delivered on 7 December 2004. Therein the
applicants, senior employees
of the provincial government, challenged
the decision of the Premier to transfer them to other posts. The
learned Judges cited
inter alia
FREDERICKS
-case
supra
and at paragraph 14 and 15 the following is stated:
“
[14] A literal
interpretation of
section 157(1)
would suggest that only disputes
specifically earmarked in the legislation for resolution by the
Labour Court fall within its exclusive
jurisdiction. This narrow
construction confirms that the legislature did not intend to confer
exclusive jurisdiction on the Labour
Courts over
all
disputes
arising from the employment relationship. (See FEDLIFE ASSURANCE LTD
v WOLFAARDT
2002 (1) SA 49
SCA at para. [25], pp. 60J-61D).
[15]
Section 157(2)
of
the LRA confers concurrent jurisdiction on the Labour Court and the
High Courts to determine disputes arising from the alleged
violation
of constitutional rights. A literal interpretation of this section
unequivocally provides for both the Labour Court and
the High Courts
to have jurisdiction over labour disputes that are not reserved for
exclusive determination by the Labour Court in
terms of
section
157(1).”
The learned Judges
further proceed as follows at para. 22 and 23:
“
[22] Applicants rely
on their constitutional protection against infringement of their
right to administrative justice and fair labour
practice as envisaged
in sections 23 and 33 of the Constitution.
[23] Thus the dispute
between the parties involves constitutional issues. We conclude,
therefore, that this dispute is not excluded
from the jurisdiction of
the High Court as court of first instance.”
[13] In my view, the
issues herein have been clouded by the manner in which prayer 2.1 has
been framed, where it is sought to hold
the respondents to the
provisions of the
Labour Relations Act, in
terms of which a normal
disciplinary hearing would be the appropriate procedure. The
applicant had been under a misconception that
he was being accused of
misconduct, when in fact the accusations relate to poor performance.
Mr Watt-Pringle submitted that in cases
of poor performance the
normal disciplinary enquiry is not held, but that the employee is
simply apprised of the complaints against
him on the basis of which
it is intended to dismiss and is given the opportunity to make
representations in rebuttal. He cited
BRERETON v BATEMAN
INDUSTRIAL
CORPORATION LTD AND OTHERS
(2000) 21
ILJ 442 (IC) at 445 – 446. Mr. Daffue somewhat agreed with this
submission and accordingly abandoned insistence on a
disciplinary
enquiry as well as reliance on the provisions of the
Labour Relations
Act.
[14
] The procedure
followed in dismissals on account of poor performance referred to
above, is provided for in
section 4
read with
section 9
of the Code
of Good Conduct, Schedule 8 to the LRA. This does not, however, per
se stigmatize the procedure as being a matter within
the exclusive
jurisdiction of the CCMA or the Labour Court. Such procedure applies
also outside the ambit of the LRA. At the root
of the procedure is
the
audi alteram partem
rule, which is central to the notion
of a fair hearing and fair labour practice. A procedure whereby an
employee is given a proper
opportunity to state his case would
satisfy the requirements. On the other hand, a process that denies
him that opportunity would
be a threat to the constitutional right to
a fair hearing.
In casu
, the essence of the applicant’s
grievance is that he was being denied a proper opportunity to state
his case and that his right
to a fair hearing was thus under threat.
In my view, that raises a constitutional issue.
[15] The point, however,
is that the submissions advanced on behalf of the respondents are not
supported by their papers. In fact,
they are at variance with the
opinion of their attorney as per Annexure “RSB3” to the replying
affidavit, which states:
“
It is my view that the
route of terminating this contract via the mechanism of the
Labour
Relations Act will
be inappropriate in this case, because of the
cancellation clause and the indefensible acts of non compliance by
the employee.”
It is clear that the
respondents acted throughout on the basis of such opinion and their
papers drawn accordingly. If there was any
doubt about that, it is
dispelled by the 72 hours notice given to the applicant which repeats
verbatim
what is stated at paragraph D of the opinion. Quite
clearly the respondents did not purport to act in terms of the
Labour
Relations Act. The
wording of prayer 2.1 cannot change the fact that
this is not a matter within the exclusive jurisdiction of the Labour
Court. In
this regard, it should be noted that this Court is, unlike
the Labour Court, not a creature of statute and does not exercise
sporadic
jurisdiction. See
MOROPANE v GILBEYS DISTILLERS
supra
at 638 F – G.
I hold therefore that
this Court has jurisdiction in the matter.
[16] Having disposed of
the highly contested issue of jurisdiction, I intend to get straight
to the singular issue that needs to be
determined, namely, whether
the applicant was entitled to bring this application. Put otherwise,
has he satisfied the requirements
of a final interdict? I have
already cited what the applicant says at paragraph 5 of his founding
affidavit and he refers to clause
7.2.3 of the contract which sets
out how the employer should deal with the employee in the event of
poor performance. He proceeds
to cite the provisions of the
applicable performance agreement and then quotes from clause 8.4
thereof:
“
Clause 8.4 of annexure
“D” confirms the obligation of the employer to act in accordance
with Labour Law Legislation and I quote
the following:
If at any stage
thereafter the Executive Mayor holds the view that the performance of
the Municipal Manager is not satisfactory, the
municipality will,
subject to compliance with applicable Labour Legislation,
be
entitled to give a notice in writing to the Municipal Manager to
terminate the Municipal Manager’s employment in accordance
with the
notice period set out in the Municipal Manager’s contract of
employment.”
He further states the
following:
“
The notice period is
one month as is evident from Clause 8.1 of the Employment Agreement.”
[17] Now I looked closely
at the opposing affidavits filed on behalf of the respondents and
found that these averments are not denied
at all. Instead the
following strange averment is made at page 94 of the pleadings:
“
I am advised and I so
verily believe that it is trite law that no Court of law has the
right, let alone the authority, to compel a
party that wants to
cancel a contract for whatever reason, not to cancel that contract.”
The second respondent is
barking at a wrong tree. It is not the right to cancel that is in
issue. Then at page 95 the following
is stated:
“
If the notice already
given to him, which is ANNEXURE “B” to the founding papers, is
not adequate, then adequate notice of the
cancellation of this
contract will be given to him and he will be afforded an opportunity
to fully put his case forward as to why
the contract should not be
cancelled.”
The applicant branded
this as an afterthought in his replying affidavit, and I agree with
him. On the applicant’s undisputed version,
he was entitled to one
month’s notice in terms of the contract but was instead given a
hopelessly short notice of 72 hours. Clearly
the respondents acted
in breach of the contract. Nor could such short notice be justified
on any ground. In a way the respondents
have conceded this much by
waiving the period of the notice.
[18] But then what
transpired leading to the launching of the instant application? The
correspondence is exchanged between the attorneys
of the respective
parties should settle the issue.
[19] Upon receipt of the
notice of cancellation, the applicant caused his attorney to address
Annexure “C” to his founding affidavit
to the Council objecting
to the procedure being followed, indicating that the 72 hours notice
was too short for the applicant to
respond to such extensive and
serious allegations and demanding an assurance that the matter would
not be dealt with on 2 November
2004. In their response to the above
letter, the Council’s attorneys advised that the applicant could
ignore the 72 hours notice
period but flatly refused to give any
assurances as to what would happen further and dared the applicant to
go to Court. The applicant’s
attorneys again tried to get
assurances that the meeting would not deal with the issue and
indicated that if they get the assurances
it would not be necessary
to launch an urgent application. Again the respondents’ attorneys
would not budge. The last paragraph
of the relevant letter, Annexure
“G” to the opposing affidavit, is ominous and states:
“
We reiterate that it
is only a question of the time period within which or after which
your client’s contract will be lawfully cancelled
by our client.
Your client might have informed you by now of the overwhelming
evidence which make his non-compliance with his contract
of
employment abundantly clearer than crystal itself.”
[20] The clear impression
is created that the respondents had already made up their mind to
dismiss the applicant and that it was
inevitable, whatever
representations or explanations he might give. It betrays the
questionable tactics adopted in this matter and
tells us that there
really was no intention of giving the applicant a fair hearing. The
question arises whether he was given 72
hours notice deliberately in
the knowledge that he would not be able to respond timeously. The
conclusion to this effect becomes
inescapable when regard is had to
what happened at the hearing of 2 November 2004.
[21] The record of the
relevant proceedings shows that Lombard J tried to get an assurance
that the meeting then already in progress
would not suspend or
terminate the applicant’s services pending the outcome of the
application. He could get none from Mr. Edeling,
the junior counsel
for the respondents in this matter. The learned Judge had to send a
message through to the Council via the office
of the Registrar. It
is therefore not far fetched to say that had the urgent application
not been launched and the learned Judge
intervened, the respondents
would most probably have terminated the applicant’s contract on the
basis that he had failed to give
reasons why he should not be
dismissed.
[22] In the
circumstances, the applicant was justified to bring the instant
application. In my view, the requirements of a final
interdict are
present. The applicant has a clear constitutional right to fair
labour practices and a fair hearing. The threat of
arbitrary and
unlawful dismissal was real and entailed the risk of irreparable
harm. It is no good to say that the CCMA or the Labour
Court would
be available to remedy the situation
ex post facto,
given that
the procedures of the LRA were not being followed. In this regard I
wish to refer to what I said in
MHLAMBI v MATJHABENG
MUNICIPALITY AND
ANOTHER
2003 (5) SA 89
(O) at
94 para. [12]:
“
The notion that an
employee facing a disciplinary inquiry should be precluded from
himself or herself taken steps to ensure that he
or she gets a fair
hearing and thereby avert any potential prejudice to himself or
herself, is in my view, illogical and would probably
violate
provisions of chapter 2 of the Constitution, in particular the right
to a fair labour practice, the right to access to information
required for protection of rights and the right to just
administrative action.”
As for the existence of
an alternative remedy, there can be no doubt that this application
was the only option available to the applicant.
[23] It stands to reason
that the application should be granted and the normal rule as to
costs applies. Regarding the costs of the
hearings of 2 November
2004 and 3 November 2004 I have noted that the respondents were
confident to argue the matter without first
filing their opposing
papers and did so purely on the basis of the points
in limine
taken by their counsel. The following was stated by Mr. Ploos van
Amstel, who was then appearing for the applicant, at p. 92 line
16:
“
The proceedings have
been fruitless, because all the points
in limine
have now been
withdrawn and with respect there can be no doubt that the respondents
must be responsible for the costs occasioned
by the appearances
yesterday and today and that is what I ask your Lordship.”
There is no indication on
such record that this statement was challenged and it is to be
accepted that it reflects the correct position.
At any rate, the
fact that the matter had to go to the merits for which a postponement
became necessary, means that the points
in limine
did not
succeed. The respondents are therefore liable for the costs of those
days as well.
[24] I have to reiterate
in passing that I have not commented at all on the validity of the
grounds of the intended dismissal as propounded
by the respondents.
Nor is the right of the respondents to dismiss in issue. It appears
though that there are indeed valid grounds
for dismissal and it
appears that the applicant has been given the opportunity to improve
his work performance. Moreover it is trite
that as a senior employee
he is presumed to be able to assess his own performance. See
BRERETON v BATEMAN INDUSTRIAL
CORPORATION
supra
at 450J – 451 (I should point out though that the
facts of this latter case are distinguishable from those of the
instant case.)
The applicant will be
well advised to carefully reconsider his position. He may have won
the battle, but the war is not over yet.
[25] As I have already
indicated, prayers 2.1 and 2.2 are in the alternative and I shall
grant only prayer 2.1 to be amended as set
out hereunder. The
application succeeds and the following order is made:
The respondents are
prohibited from terminating the applicant’s employment agreement
without giving him a fair hearing, including
a proper notice.
The respondents to pay
the costs of suit, including the costs of the proceedings on 2
November 2004 and 3 November 2004.
___________
H.M MUSI, J
On behalf of
Applicant: Advocate JP Daffue
Instructed by
Lovius Block
Attorneys
BLOEMFONTEIN
On behalf of
Respondents: Advocate CE Watt-Pringle SC
Assisted by
Advocate WJ Edeling
MJD Sizephe
Attorneys
C/o Kramer, Weihmann
& Joubert
BLOEMFONTEIN
/ec