Sesele v Matjhabeng Local Municipality and Another (931/2005) [2005] ZAFSHC 85 (9 June 2005)

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
>>
2005
>>
[2005] ZAFSHC 85
|

|

Sesele v Matjhabeng Local Municipality and Another (931/2005) [2005] ZAFSHC 85 (9 June 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case Nr: 931/2005
In
the matter between:
R
S B SESELE
Applicant
and
MATJHABENG
LOCAL MUNICIPALITY
First Respondent
SJ
LEEUW: EXECUTIVE MAYOR,
MATJHABENG
LOCAL MUNICIPALITY
Second
Respondent
JUDGMENT:
H.M.
MUSI J
HEARD ON:
12
MAY 2004
DELIVERED ON:
9
JUNE 2005
[1] Mr. R.S.B. Sesele
(the applicant) is the municipal manager of Matjhabeng Local
Municipality (the first respondent). Mr. S.J.
Leeuw (the second
respondent) is the executive mayor of the first respondent and is the
functionary through whom the first respondent
acted throughout the
dispute forming the subject of this case. He is representing his
municipality in these proceedings as well.
In December 2004 the same
parties were before me in an urgent application wherein the applicant
sought to stop his employers, the
respondents, from dismissing him
arbitrarily without giving him proper notice. That was an
application for a final interdict and
I granted it in a written
judgment delivered on 27 January 2005. In granting the application I
noted that the dispute between the
parties was far from over and I
remarked further
“
The
applicant will be well advised to carefully reconsider his position.
He may have won the battle, but the war is not over yet”.
That turned out to be a
prophecy, for hardly a month had elapsed when sparks started flying
again.
[2] I must mention that
at the outset of the hearing I specifically asked the parties if they
would be comfortable with me hearing
this matter in view of some
remarks I had made obiter in the earlier case regarding the charges
levelled against the applicant.
The parties assured me that they
were happy that I hear this matter since it did not involve the
merits of the dispute.
[3] On the 16
th
February 2005 the second respondent issued a letter calling upon the
applicant to make representations to him as to why the applicant
should not be suspended pending the holding of a disciplinary enquiry
on charges of poor performance. The letter sets out the details
of
the accusations levelled against the applicant. Such letter is
annexed to the applicant’s founding affidavits as annexure A.
The
applicant was given up to the 22
nd
February 2005 at 14h00 to submit representations. When the
representations were not forthcoming, the second respondent placed
the
matter before a council meeting of the first respondent on the
same afternoon and a decision was taken to suspend the applicant with
effect from 1 March 2005 pending the holding of a disciplinary
hearing. The suspension was with full pay.
[4] The applicant now
wants this court to review and set aside the suspension aforesaid.
This review application was brought on the
basis of urgency and first
came before Ebrahim J on 14 April 2005 but it was postponed
sine
die
and
the applicant ordered to pay the wasted costs. It is not quite clear
to me why the matter had to be postponed but it appears
that the
learned judge queried whether the action complained of was
reviewable. The learned judge apparently had in mind the exclusions
under subsection (cc) of section 1 of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). She suggested that the applicant
should specifically address this issue. Apparently the applicant
opted for a postponement in order to address the court’s concern
and supplementary heads of argument were subsequently filed.
[5] The source of the
applicant’s complaint is the manner in which the respondents went
about to suspend him. In essence he says
that he had not been given
an opportunity to be heard by making proper representations before he
was suspended. His version is that
he had been on sick leave, his
doctor having booked him off sick from 15 February 2005 to 28
February 2005 and he annexed a medical
certificate to that effect.
He says that the second respondent was well aware of this fact when
he initiated suspension steps with
the letter dated 16
th
February 2005, that the second respondent knew that he could not
comply with the demand to make representations by the given deadline
due to ill health. Implied in this assertion is an allegation of
mala
fides
on part of the second respondent. I shall return to the factual
issues around this averment in due course.
[6] The legal issue to be
resolved is whether the decision to suspend the applicant is an
administrative action as set out in section
1 of PAJA, and much of
the oral argument centred on this aspect. In this regard, it has to
be accepted that though the move was
initiated by the second
respondent, the decision itself was that of the municipal council of
the first respondent 22 February 2005.
There is no dispute that the
first respondent had the authority to take such decision. In this
regard, this case differs from that
of
L.
D. TSOTETSI v N. MOHAPI ON BEHALF OF MOTHEO DISTRICT MUNICIPALITY AND
OTHERS
,
case number 2605/2004, an unreported judgment of Wright J delivered
on 12 August 2004, to which Mr. Daffue, for the applicant, referred.

There the decision to suspend was that of the municipal manager who
had no authority to do so. The suspension was held to be
ultra
vires
and invalid. The lawfulness of the decision as such is not in issue
in this case. But the procedure by which the decision was arrived
at
is in issue in the sense that it is alleged to have been irregular
and unfair.
[7] It is important to
decide whether the decision was an administrative action because if
it is not then it will not be reviewable
in terms of PAJA. Mr. van
Rhyn, the senior counsel who argued the matter on behalf of the
respondents submitted that the decision
to suspend herein falls
within the exclusion under subsection (cc) of section 1. The
subsection specifically excludes executive
powers or functions of a
municipal council from the definition of an administrative action.
That means that if the decision falls
within the executive functions
of the first respondent’s council then it will not be reviewable
under PAJA. Mr. van Rhyn cited
inter
alia
FEDSURE
LIFE ASSURANCE LTD AND OTHERS v GREATER JOHANNESBURG TRANSITIONAL
METROPOLITAN COUNCIL AND OTHERS
1998(12) BCLR 1458 CC; 1999(1) SA 374 CC where it was held that
municipal functions like imposition of rates and levies are
legislative
and do not constitute administrative action.
[8] Mr. Daffue countered
by arguing that the exclusion aforesaid relates only to the executive
functions of a municipal council, that
the decision in question was
not of an executive nature but rather administrative. He submitted
that in deciding whether an action
is administrative the court should
look not at the nature of the organ but rather the nature of the
specific function. He cited
PRESIDENT
OF THE RSA AND OTHERS v SARFU AND OTHERS
1999(10) BCLR 1059 CC.
[9] Of course the
approach contended for by Mr. Daffue in deciding whether a decision
is an administrative action or not is correct.
But even applying
that approach, in my view, the decision of the municipal council
herein is not an administrative action. The
nature of the power that
the first respondent was exercising
in
casu,
is
cardinal. It is not in dispute that the first respondent is an organ
of state. But one has to look at the capacity in which it
was acting
when it suspended the applicant. It was acting not in its public
representative capacity exercising its legislative or
executive
functions or implementing legislation but rather in its capacity as
an employer
vis-a-vis
an employee. It was in the same position as any other employer. In
this regard it is noteworthy that the
Labour Relations Act 66 of 1995
puts the state and its organs in the same position as any employer in
their dealings with their employees.
[10] Review in terms of
PAJA has got to do with judicial oversight of the exercise of public
power. Where an organ of state is not
exercising a public power, the
action concerned does not answer to the definition of administrative
action. Hence it has been held
that where a municipal council
cancelled a contract in terms of the provisions of that contract, the
act of concellation was not
an administrative action as the council
was not then exercising a public power. See
CAPE
METROPOLITAN COUNCIL v METRO INSPECTION SERVICES CC AND OTHERS
2001(3) SA 1013 SCA.
It is noteworthy that
section 1
of PAJA includes within the definition of administrative
action a “natural or juristic person when exercising a public power
or
performing a public function”. It is the exercise of public
power that is central to the definition. Absent the exercise of
public
power, there is no administrative action.
[11] Even if I am wrong
in my above conclusion and it is accepted that the municipal council
was performing a public function when
suspending the applicant, the
decision still does not answer to the definition of administrative
action, for want of another element.
The decision is essentially a
matter between an employer and its employee and cannot be supposed to
have external, legal effect.
Compare
RITCHIE
AND ANOTHER v GOVERNMENT, NORTHERN CAPE, AND OTHERS
2004(2) SA 584 NPD. I hold therefore that the matter is not
susceptible to review under PAJA.
[12] Mr. Daffue also
submitted that the decision is reviewable on broad constitutional
grounds as an instance of procedural unfairness.
In this regard is
should be noted that the fact that the actions or decisions of a
state organ do not fall within the definition
of administrative
action and therefore not reviewable under PAJA, does not mean that
they are immune from judicial review. They
can still be reviewed on
common law grounds based on the principles of natural justice,
providing for procedural fairness. Review
on these grounds still
takes place within the framework of the constitution because as was
stated in
Pharmaceutical
Manufacturers Association of South Africa and Another
in
re ex parte
President of the Republic of South Africa
2000(2)
SA 674 CC at 692 F, the relevant common law principles “have been
subsumed under the Constitution” and “gain their force
from the
Constitution”. Examples of review on this basis abound but I shall
refer to only a few cases.
[13] In
MARAIS
v DEMOCRATIC ALLIANCE
2002(2)
BCLR 171 C it was found that a decision by a political party to
terminate the membership of the applicant was not an administrative
action and not reviewable under PAJA but the court proceeded to
review it on account of failure to comply with the requirements of
procedural fairness and natural justice. In
MAFONGOSI
AND OTHERS v UNITED DEMOCRATIC MOVEMENT & OTHERS
(2003) 1 ALL SA 441
(Tk) a decision of a disciplinary tribunal of a
political party to postpone the disciplinary hearing for a very short
period and
thereby denying the applicant legal representation was
reviewed on the basis that it had been procedurally unfair.
[14] Furthermore, in
respect of bodies that have definite rules prescribing the procedure
to be followed in making decisions and by
whom, the decisions would
be reviewable on the basis that whoever took the decision had no
authority and therefore acted
ultra
vires
or that he failed to follow the prescribed procedure. This is in
line with the principle of legality embodied in our constitution.

The case of
L.D.
TSOTETSI v N MOHAPI,
referred to above, is an example of review on this basis.
[15] This court has in
the past reviewed suspensions of top state employees on similar
grounds. Precedents are legion but it is unnecessary
to detail any.
Mr. Daffue has referred to the case of
L.
JANSE VAN RENSBURG AND OTHERS v DIE DEPARTEMENTSHOOF, DEPARTMENT VAN
TOERISME- OMGEWINGS- EN EKONOMIESE SAKE, VRYSTAAT PROVINSIE
AND
ANOTHER,
number 2473/2004, an unreported judgment of Hancke J delivered on 28
July 2004. In this case a provincial department had a code
of
conduct for its senior managers which set out not only the procedure
to be followed in cases of precautionary suspensions but
also the
grounds therefor. The applicants had been suspended without
following the prescribed procedure and in the absence of the
grounds
that should have informed the decision. The suspensions were
reviewed and set aside.
[16] Now for the facts of
the instant matter. I have not been referred to any code of conduct.
It is common cause, however, that
in line with the
audi
alteram partem
rule, the second respondent was obliged to give the applicant an
opportunity to be heard before putting the matter to the council
for
a decision. Indeed the letter dated 16
th
February 2005 purports to give the applicant the opportunity to state
his case. The applicant’s case is that he could not be expected
to
have made any representations as he was on sick leave at the time and
that the second respondent knew this before he put the matter
before
the council meeting on 22 February 2002. He cites the provisions of
the
Basic Conditions of Employment Act 75 of 1997
to the effect that
the an employer is not entitled to demand of an employee who is on
valid sick leave to perform any functions in
relation to his or her
employment.
[17] Now, there is a
dispute of fact as to whether the second respondent was aware of the
applicant’s illness when the letter date
16/02/2005 was issued.
The second respondent says that he only became aware of that fact
upon receipt of a letter from the applicant’s
attorneys on
18/02/2005. On the other hand, the applicant says that the second
respondent would have been made aware of the fact
on 15 February 2005
at the earliest. In my view, this dispute is not a genuine dispute
of fact. In his replying affidavit the applicant
has referred to an
internal memo that was circulated within the municipal chambers on
the 15
th
February 2005 wherein it is advised that Mr. B. Maritz would be
acting in the place of the municipal manager (the applicant). This
memo was written at the instance of the applicant and supports his
version that he had informed his secretary, Nadia Ferreira, of
his
illness and that this was communicated to his employers. The
applicant had further arranged that Maritz should act in his place
for the duration of his sick leave. The memo makes it clear that
Maritz will be acting up to the 28 February 2005, which is the
date
on which the applicant’s sick leave would end. Quite clearly the
memo must have come to the attention of the second respondent.
[18] Interestingly the
letter initiating the suspension process follows on the heels of this
memo. Is it a co-incidence? I do not
think so. It appears that the
second respondent seized on the opportunity presented by the
applicant’s illness to suspend him,
and if so, that would mean that
there was no genuine intention to give the applicant an opportunity
to be heard before being suspended.
This inference becomes
inescapable when taking into account that, on his version, the second
respondent became aware that the applicant
was on sick leave on the
18
th
February 2005, yet he hurriedly went ahead and put the matter to the
council meeting within hours of the deadline of 2 o’clock
on that
very same afternoon; this when he had been advised that the applicant
would be unable to meet the deadline set for the representations
due
to ill health. The applicant was due to return on 29 February 2005.
The question arises: why not wait for a few days in order
to hear
the applicant first?
[19] It is clear that the
second respondent realised that he had acted irregularly and then
sought to cure the defect by issuing a
further invitation to the
applicant by a letter dated 1 March 2005 to make representations.
This latter letter is a contradiction
in terms. It informs the
applicant that he is “suspended with immediate effect from all
municipal duties and/or functions” pending
the disciplinary
hearing. Yet it invites the applicant to give reasons why he should
remain in active service for the duration of
his suspension. How
could the applicant remain in active service when he has already been
suspended from all his functions? On
the very same day that the
letter was written the applicant’s suspension took effect in terms
of the resolution of the municipal
council of 22 February 2005. What
purpose then would further representations serve since the decision
to suspend had already been
taken? In my view, not only was the
conduct of the second respondent improper and unfair but was
mala
fide
as
well. Clearly the suspension of the applicant was procedurally
irregular and unfair.
[20] But this is typical
of the way that the respondents have been going about in their zeal
to get rid of the applicant. In my earlier
judgment between the same
parties, I pointed out clearly that the right of the respondent to
terminate the applicant’s contract
was not in issue. What was in
issue was the manner of doing it. I deplored the questionable
tactics that the respondent had adopted
in the previous incident.
Certainly those remarks seem to have eluded the respondents and their
legal representatives, for they
have now proceeded in the same
fashion. Again it is not their right to suspend the applicant which
is in issue. The issue is the
manner of doing it. It is beyond me
why would the respondents not let the applicant return from sick
leave and then commence the
suspension process properly.
[21] It is also
noteworthy that in the original notice of suspension no indication
whatsoever is given as to why it is thought necessary
that he should
vacant his office pending the disciplinary hearing. The reasons for
suspending him are made
ex
post facto
in the letter dated 1 March 2005 and are vague. The ground on which
it is proposed to terminate his services is poor performance
and this
is an old averment. Now suddenly new allegations emerge
inter
alia
that his presence threatens labour relations.
[22] Mr. van Rhyn has
also raised the argument that since the suspension itself was a
decision of the municipal council, it can only
be reviewed if it is
unconstitutional or
ultra
vires
the powers of the municipality. This argument was premised on the
proposition that the decision was an executive function falling
within the exclusions set out in
section 1
of PAJA. I have found
that the respondents were not exercising a public function when
suspending the applicant. Nor is the authority
of the municipality
to take the relevant decision an issue. The point is that the
decision was arrived at through an irregular and
unfair procedure.
It is reviewable in terms of the traditional common law principles
that are now embodied in the constitution,
especially
section 33.
[23] I should remark in
passing that this appears to be a typical labour dispute that should
properly have been dealt with in terms
of the provisions of the
Labour Relations Act 66 of 1995
and I am aware of the jurisprudence
developed by the Labour Court in matters of this nature. However, no
objection was raised to
the jurisdiction of this court and, at any
rate, we are here dealing with alleged infringements of the rights
contained in
sections 33
and
23
of the constitution, matters over
which this court has concurrent jurisdiction with the Labour Court in
terms of
section 157(2)
of the
Labour Relations Act.
[24
] I have found that
the decision to suspend the applicant is reviewable but that does not
automatically lead to its setting aside.
In this regard various
considerations come into play. Firstly, the question of prejudice.
In
MANONG
AND ASSOCIATES v DIRECTOR GENERAL DEPARTMENT OF PUBLIC WORKS AND
OTHERS
(2004)1 ALL SA 673 C it was remarked that the concept of prejudice in
our administrative law has been retained in
section 1
of PAJA. It
stands to reason that a procedurally unfair decision must have caused
the aggrieved party some prejudice to warrant
setting aside. The
suspension
in
casu
is
with full pay and the applicant has not shown in his papers how he
would be prejudiced. All that Mr. Daffue could say in argument
was
that the suspension was calculated to humiliate the applicant and
that it deprived him of the right to do the job for which he
was
hired. But that is a normal consequence of a suspension even if it
was arrived at through a fair procedure. Moreover, this
is merely a
precautionary suspension pending the disciplinary hearing. I was
informed during the hearing that the disciplinary hearing
has already
been set down. In
MABITO
v MPUMALANGA PROVINCIAL GOVERNEMENT AND OTHERS
(1999) 8 BLLR 821
LC it was held that whilst the
audi
alteram partem
rule was an important element of natural justice, the interests of
good public administration required flexibility in its application.

And what practical purpose would the lifting of the suspension serve
given that the disciplinary hearing has been set in motion?
It may
well be that by the time this judgment is delivered the hearing would
be concluded. It is time that the disciplinary hearing
be allowed to
run its full course without further disruptions so that the merits of
the dispute between the parties can be resolved
once and for all.
[25] In my view, it would
be inappropriate to set aside the suspension and the proper course is
to strike the matter off the roll.
As far as costs are concerned,
the applicant and the respondents have respectively been partly
successful and partly unsuccessful.
It is only fair and proper that
each party should carry their own costs. The following order is
made:
The application is
struck off the roll and there shall be no order as to costs.
___________
H.M MUSI, J
On behalf of
Applicant: Advocate J.P. Daffue
Instructed by
Lovius
Block Attorneys
BLOEMFONTEIN
On behalf of
Respondents: Advocate A.J.R. van Rhyn SC
Assisted by
Advocate W.J.
Edeling
MJD Sizephe
Attorneys
c/o Kramer, Weihmann
& Joubert
BLOEMFONTEIN
/em