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[2024] ZAKZPHC 48
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Nene v District Municipality of Zululand and Others (332/2024P) [2024] ZAKZPHC 48 (21 June 2024)
Last
amended version 1 July 2024.
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER: 332/2024P
In the matter between:
FAITH
KABO NENE
APPLICANT
And
DISTRICT
MUNICIPALITY OF ZULULAND
FIRST RESPONDENT
THE MINICIPAL MANAGER
OF THE
DISTRICT
MUNICIPALITY OF ZULULAND
SECOND RESPONDENT
MEC: OF THE DEPARTMENT
OF
COOPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
THIRD
RESPONDENT
JUDGMENT
PITMAN
AJ
Introduction and
background
[1]
I heard argument in this matter yesterday. Due to its nature and
effect, I prepared this judgment
overnight. The application arises
pursuant to orders granted in the applicant’s favour by my
sister Sibiya J (“the
Court a quo”) in a written
judgement dated 8 April 2024. The applicant had been employed by the
first respondent as its Director
of Community Services on 1 August
2022. This was in terms of a written employment contract which
records, on its first page, that
the Municipal Manager of the first
respondent, Ronald Ntokoza Hlongwa signed on its behalf “
duly
authorised by the Municipal Council”
. It determined, inter
alia, that the term of employment would continue for a fixed period
of five years ending on 31 July 2027.
[2]
Of particular relevance is the fact that clause 5.2 of the agreement
recorded that “
The employer will be entitled to terminate
the employee’s employment 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 the
disciplinary code
and procedure of the South African Local Government
Bargaining Council will apply, as well as in accordance with the
Labour Relations Act, 1995
.”
[3]
On 20 December 2023, one year and four months later, without the
first respondent complying with
any of the requirements of clause
5.2, the applicant received correspondence from the same Municipal
Manager of the first respondent
who had signed her contract of
employment, informing the applicant, inter alia, as follows:
“
Based
on the assessment of the MEC for COGTA, it has transpired that your
appointment as the Director: Community Services does not
comply with
both the academic and experience requirements stipulated on the 2014
Regulations on the Appointment and Conditions
of Service for
Municipal Managers and Senior Managers… In the light of the
above, during the meeting held on Thursday, 20
December 2023, Council
resolved to terminate your employment contract with immediate
effect…”
[4]
The applicant took the immediate view that that termination was in
violation of clause 5.2 and
the next day, through attorneys she had
urgently approached for assistance, communicated in writing with the
first and second respondents,
to the effect that the alleged
termination of her employment was done without “
notice or
any fair process”
, and that her salary for December was
also being unlawfully withheld.
[5]
Receiving no response, and not being able to contact her erstwhile
attorneys due to the holiday
season, the applicant urgently mandated
her present firm of attorneys to correspond further with the
respondents which they did
in writing on 9 January 2024. This letter
again recorded that the dismissal of the applicant was a breach of
the contractual obligations
between her and the first respondent and
that due process had not been followed by the first respondent. It
again demanded payment
of her December salary. The applicant also
requested a copy of the “
assessment”
referred to
in the termination letter and threatened litigation and a punitive
costs order if not complied with.
[6]
Once again there was no response, and the applicant accordingly
drafted an urgent application
dated 12 January 2024 which was set
down for hearing on 23 January 2024. The notice of motion provided
relief comprising essentially
her reinstatement, payment of her
salary and interdicts pending a review of the dismissal decision. The
third respondent did not
take part in the application. As a matter of
convenience, I will refer hereunder to the first and second
respondents as “the
respondents” unless the context
requires otherwise.
[7]
That application was opposed. and an answering affidavit, dated 22
January 2020, was delivered.
In addition, the respondents delivered a
counter application which sought, inter alia, declaratory relief to
the effect that the
employment contract was null and void and that
the decision to employ the applicant be reviewed (“the review
application”).
For reasons that are not entirely clear to me,
the counter application, was sought and issued as an “
urgent”
application under a certificate of urgency signed by an advocate
alleging that it was sufficiently urgent to be heard on 23 January
2024. In terms of Rule 6(7), the respondents were entitled to bring
the counter-application, if they wished, and it seems to me
that the
submissions by their legal representatives that it should be treated
as an urgent application were superfluous and unnecessary.
I can only
speculate that it was done in that fashion because the relief sought
in the counter application included interim relief.
To my mind,
however, the labeling of the counter-application as an “
urgent
application”
caused confusion to the extent that there may
be an argument that the Court a quo ought not to have struck off the
roll for want
of urgency, as would an application brought
ab
initio
where urgency was claimed but not supported by the facts.
This issue is not relevant to this application in my view, however.
[8]
After argument on 1 March 2024, the Court a quo, on 8 April 2024,
found in favour of the applicant
and granted the following orders:
1.
The first and
second respondents are in breach of the contract of employment dated
1 August 2022 and are directed to pay the applicant
her salary for
December 2023 and for January to March 2024.
2.
The first
respondent is directed to reinstate the applicant to the position of
Director of Community Services within five days of
this order.
3.
The first and
second respondents are directed the pay the costs of the application
on an attorney and own client scale.
4.
The
counter-application declaring the contract of employment dated 1
August 2022 null and void and reviewing the decision of the
Municipal
Council to appoint the applicant, is struck from the roll with costs
on an attorney and own client scale.
[9]
Against that background, the respondents launched an application for
leave to appeal those orders,
in a document dated 12 April 2024. That
application was argued on 30 April 2024 and in a judgement dated 17
May 2024 the Court
a quo refused leave to appeal.
[10]
Not happy with that refusal, on 21 May 2024 the respondents launched
a petition to the Supreme Court of Appeal.
The petition’s
founding papers are dated 20 May 2024. The whole of the judgment of
the Court a quo is sought to be appealed.
I make the point at this
stage that the petition does not state what order/s would eventually
be sought from the SCA on appeal
(if leave were given) and the
judgment of the Court a quo were to be set aside.
[11]
Neither does the respondents’ notice of application for leave
to appeal in the Court a quo. It seems
unlikely that the appeal
court, if leave is granted, will be asked to determine the
respondents’ review counter-application,
which was struck from
the roll and, for that matter, the significant issue relating to the
respondent’s submission that the
agreement is invalid to the
extent that they were entitled to unilaterally terminate it without a
self-review application in the
face of the applicant’s denial
that it was invalid.
[12]
During argument before me the applicant’s attorney submitted
that the applicant has not yet prepared
the answering affidavit in
the review application as she is in the process of attempting to
raise funds to do so, having been rendered
impecunious by the
respondent’s unilateral, and without prior warning, termination
of the employment agreement and the unilateral
stopping of all
salaries to her simultaneously therewith. In the petition, the
respondents persist with the submission that
there was no obligation
on the Municipality to seek a self-review of its appointment of the
applicant as, by operation of law,
the contract was null and void and
that all that was required was that the first respondent unilaterally
declare that to be so.
[13]
The review application launched by the respondents remains alive. I
was advised in argument that the respondents
have done nothing to
further pursue it.
[14]
The applicant launched this application on 24 May 2024, (4 days after
the petition was delivered) being then
an urgent application for
relief provided for in section 18 of the Superior Courts Act, 10 of
2013, (“section 18”)
in the form of orders directing,
inter alia, the immediate implementation of orders 1 and 2 of the
Court a quo as set out above,
notwithstanding (and pending) the
outcome of the petition to the Supreme Court of Appeal (the SCA”).
[15]
Section 18
The section reads as
follows:
“
18
Suspension of decision pending appeal
(1)
Subject to
subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation
and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision of
the application or appeal.
(2)
Subject to
subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application
for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A court may
only order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to
order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does
not so order and
that the other party will not suffer irreparable harm if the court so
orders.
(4)
(a)
If
a court orders otherwise, as contemplated in subsection
(1)-
(i)
the court must immediately record its
reasons for doing so;
(ii)
the aggrieved party has an automatic right of
appeal to the next highest court;
(iii)
the court hearing such an appeal must
deal with it as a matter of extreme urgency; and
(iv)
such order will be automatically suspended,
pending the outcome of such appeal.
(b)
'Next
highest court'
,
for purposes of paragraph
(a)
(ii),
means-
(i)
a full court of that Division, if the
appeal is against a decision of a single judge of the Division; or
(ii)
the Supreme Court of Appeal, if the
appeal is against a decision of two judges or the full court of
the Division.”
[16]
The judgment in
KGA
Life
Limited
v Multisure Corporation (Pty) Ltd and others
2023
JDR 0009 (ECMA)
is
a useful place to start regarding the law, because it carefully
analyses the requirements of section 18, as against the SCA decisions
of
University
of the Free State v Afriforum
2018 (3) SA 428
(SCA)
,
Premier
of the Province of Gauteng v Democratic Alliance
[2021] 1 All SA 60
(SCA)
,
Knoop
NO v Gupta (Execution)
2021 (3) SA 135
(SCA)
,
and
Ntlemeza
v Helen Suzman Foundation
2017 (5) SA 402
(SCA)
all of which consider the effect and requirements of this section.
The KGA decision set
out in paragraph [42] the following:
“
[
42]
From the SCA judgments the following is evident:
(a)
The suspension of a
court order pending an appeal is the norm.
(b)
An execution order
pending an appeal is extraordinary relief for which an applicant have
to make out a case on the specific facts
in the matter
(c)
This requires the
applicant, as a first hurdle,
I.
to demonstrate that
exceptional circumstances exist which warrant departure from the
norm, and
II.
to prove on a
balance of probabilities, that
i.
he or she will
suffer irreparable harm if the execution order is not granted and
ii.
the respondent will
not suffer irreparable harm should the execution order be granted.
(d)
Failure on the part
of the applicant to prove any one of these facts, is fatal to the
application.
(e)
Facts may be
relevant to both the requirements of exceptional circumstances and
irreparable harm.
(f)
The position as to whether the court retains a discretion to
grant the relief and the
role of the prospects of success in the
exercise of that discretion remains unclear. However, it would seem
that the prospects
of success on appeal do not take centre stage in
the determination of an application for an execution order in terms
of section
18(1) and (3) since these were not considered in the cases
before the SCA.”
[17]
As regards the prospects of success of the petition or appeal, the
SCA in
University
of the Free State v Afriforum
2018
(3) SA 428
(SCA) at paragraph [15],
agreed
with the approach of Binns-Ward j in
Minister
of Social Development Western Cape v Justice Alliance of South
Africa
,
(cited by the SCA in this decision as
[2016]
ZAWCHC 34
)
to the effect that the prospects of success in the appeal remain a
relevant factor and that “
the
less sanguine a court seized with an application in terms of s 18(3)
is about the prospects of the judgment being upheld on
appeal, the
less inclined it will be to grant the exceptional remedy….”.
The
converse should also apply in my view.
[18]
The application before me was brought on an urgent basis. Any
challenge to urgency was abandoned by Advocate
Topping SC for the
respondents at the outset of the hearing. I accordingly do not need
to consider that issue any further.
[19] In
summary, the applicant, in her affidavit, alleges the following
exceptional circumstances:
a)
From the moment of the
unilateral termination of her contract of employment with the first
respondent on 20 December she has received
no income at all. She did
not even receive her salary for that December in respect of which she
had worked.
b)
As a consequence of not
having her salary she cannot pay her monthly creditors, some of them
have initiated processes to “
strip”
her of her assets as she is by now in default of various credit
agreements. In addition, she states that her life insurance policies
which she has had for years have lapsed due to her inability to
maintain the payments. She put up various correspondences in support
thereof.
c)
She states that her
monthly financial obligations of those set out in her initial
founding affidavit in the main application and
confirms again. She
confirmed that she cannot pay them because she has no income.
d)
She states that in
addition thereto she is responsible for maintaining members of her
extended family who rely on her for school
fees and general
sustenance. She has been unable to assist in financially as a
consequence of the conduct of the first respondent.
e)
She states that her
lack of finances has also resulted in an inability to pay for the
legal representatives and that in order to
keep their assistance she
has had to enter into AOD’s with her lawyers.
f)
None of these financial
difficulties are denied by the respondents.
g)
She also challenges the
bona fides
of the respondent’s dismissal because she claims it is settled
law that the respondents were not permitted to terminate her
contract
of employment unilaterally and/or without any notice to her and that
they were obliged in law to approach the court for
a declaratory
order and/or review of her appointment before they could simply
ignore it as they did.
[20] In
argument the applicant’s attorney, Mr. Shamase, submitted that
additional exceptional circumstance
were:
a)
The respondents did not have clean hands in
relation to these issues because it was well established law that for
an entity such
as the first respondent to set aside a decision it had
taken (in this case the decision to employ her by thereafter
dismissing
her) it was obliged to launch what has been referred to as
a “self-review” application. In support of that
submission,
he relied upon
Mohlomi v
Ventersdorp/Tlokwe Municipality and Another
[2018] 4 BLLR 355
(LC). At paragraph [82] of that judgement the court
held
that “it is significant that
despite the Systems Act providing for an appointment of a manager
been null and void if it is
not in compliance with the System Act, it
does not follow that the municipality (such as the first Respondent)
can simply revoke,
ignore or cancel the appointment. If the
municipality wants to treat the appointment null and void, then it
must approach the Court
for an order to that effect”.
He argued that section 56(6) of the Systems Act adds to a conclusion
that an approach to court is a necessary prerequisite to the
termination of the employment agreement. It reads as follows:
“
(6)
If a person is appointed to a post referred to in subsection (1) (a)
in contravention of this Act, the MEC for local government
must,
within 14 days of becoming aware of such appointment, take
appropriate steps to enforce compliance by the municipal council
with
this Act, which steps may include an application to a court for a
declaratory order on the validity of the appointment or
any other
legal action against the municipal council.”
While this section deals
with the obligations of the MEC vis a vis the Municipality, it
reaffirms, it was argued, the requirement
to get the authority of the
Court in circumstances such as these.
b) He argued further that
the serious allegations set out hereunder regarding the actual
motivation for the dismissal (as referred
to below) had not been
denied and were accordingly to be accepted as true. Those allegations
evidenced a wholly contrived plot
to dismiss her unjustifiably. He
submitted that this demonstrated further the unclean hands and
immoral conduct on behalf of the
respondents. These facts, he pointed
out, were that the applicant had specifically challenged the real
motivation for, and
bona fides
of, her dismissal when she set
out in her initial founding affidavit, that in October 2023 she had
reported inappropriate sexual
conduct and abusive behaviour by the
first respondent’s Mayor against her. As a consequence,
on 12 December 2023 (8
days before her employment was terminated),
she had obtained a protection order against him. Immediately
thereafter she heard that
queries about her employment had been
leaked to the press and within days (on 20 December) her employment
was terminated. In paragraphs
30 and 31 of her founding affidavit in
the main application she stated that after receiving the termination
of employment letter
on 20 December 2023 she contacted the Municipal
Manager, Mr. Ntokozo Hlongwa, who told her that the mayor had told
him she would
receive her salary if she apologised to him. She also
received other “
intelligence”
from a friend that
the mayor had indicated that if she apologised to him she would
be
“reinstated to her position”.
It was argued that
because these facts were never denied by the same Ntokozo Hlongwa
against whom the allegations were directed,
and who deposed to all
affidavits herein on behalf of the respondent’s, they stood as
proved and established the true reason
for the dismissal.
[21] As
far as irreparable harm in respect of the parties is concerned, it
was argued on behalf of the applicant
that failure to grant execution
of the judgement leaves the applicant in the position of irreparable
financial loss for the reasons
that have already been set out above.
It was argued that the respondents would not suffer any irreparable
loss because there was
no indication on the papers that she was not
doing the job that she was employed to do, properly and fully and
that accordingly
any compensation pending the determination of the
validity of the employment agreement would be entirely justifiable. I
pause to
add that it is common cause that the applicant has since the
start of the contract not given any reason to criticise her
performance
in the position to which he was appointed.
[22]
For the respondents it was argued that section 56(2) of the Local
Government: Municipal Systems Act (“the
Systems Act”)
applicable at the time provided that “
a decision to appoint
person referred to in subsection (1) (a) (ii)… Is null and
void if- (a) the person appointed does not
have the prescribed
skills, expertise, competencies or qualifications; or (b) the
appointment was otherwise made in contravention
of this act…”
[23] It
was common cause that the applicant was a section 56 appointment, and
it was accordingly argued by the
respondents that because, as far as
the respondents were concerned and had decided by December 2023 that
the applicant did not
have the qualifications necessary for the job
at the time of her appointment in 2022, the contract of employment
was null and void
and they were simply entitled to unilaterally
assert that to be so, thereby immediately terminating the
relationship between the
first respondent in the applicant and the
immediately right to refused to pay her anything further. It was
argued that the judgement
of the Court quo in ordering the
reinstatement of the applicant was ordering an illegality which was
not permitted. It was argued
further that there was no obligation by
the first respondent to self-review the decision to employ the
applicant before summarily
and unilaterally cancelling it because it
was in the respondent’s view, null and void
ab initio
.
It was also argued that because the agreement was in effect null and
void, any terms therein providing for the circumstances as
to how the
agreement could be terminated were irrelevant and of no force and
effect. It was therefore argued that any order by
this court ordering
the operation the execution of the Court a quo’s judgement
would amount to countenancing an illegality,
which it was submitted,
could not be permitted.
[24]
Mr. Topping SC also submitted that permitting her to continue in this
“
illegal”
contract would cause irreparable harm to
the first respondent as it may incur wasteful and irregular
expenditure in paying the
applicant which could not be recovered due
to her admitted financial problems.
Analysis
[25] In
my view, the facts set out above in paragraphs [19] and [20], which
facts I accept, constitute sufficiently
exceptional circumstances
allowing for the operation and execution of the orders of Sibiya J. I
am alive to the judgments that
have held that the circumstances
should be out of the ordinary and of an unusual nature to warrant a
departure from the “
norm”
of suspension. In my
view they are. I reject the argument by Mr. Topping SC that financial
destruction because of a judgment is
invariably a possible
consequence and therefore quite usual. I have considered the facts
herein carefully and holistically. The
unilateral conduct of the
first respondent has caused the applicant peculiarly and
extraordinary financial hardship in my view.
They are full set out
above. The facts, particularly in relation to the effects of the
first respondents conduct on the applicant
in this matter are
extraordinary.
[26] I
cannot agree that continuing paying the applicant for a job she was
doing properly (which is not disputed)
pending a final determination
as to the validity of the employment agreement could practically
constitute wasteful and irregular
expenditure simply because of the
fact that it may later be proved she did not have the correct
qualifications. In my view further,
the submissions about her lack of
funds as a reason for being concerned about recovery if she loses the
litigation is incomprehensible
and in breach of her rights to be able
to defend herself, with lawyers, against what she perceives as
unlawful conduct by the first
respondent, particularly in
circumstances where the first respondent’s conduct is the
immediate and direct cause of that
financial harm in the first place.
More particularly that is so where the respondents have not even
bothered to move their review
of her appointment any further forward.
[27] I
appreciate that the bar is set fairly high by section 18, as
submitted by Mr. Topping SC. The section determines
that proof of the
irreparable harm suffered and the fact that the first respondent will
not suffer irreparable harm by the applicant,
is to be on a balance
of probability. In my view, on the basis of the facts set out above,
I am of the view that the applicant
has discharged that onus.
[28]
While the strength of the proposed appeal may only be a small factor
to consider, such consideration in my
view falls in favour of the
applicant. Mr. Topping SC has not been able to refer me to any
decisions that support the submission
that the first respondents
conduct by unilaterally declaring its decision to appoint the
applicant to be reversed was permissible.
I am not aware of any legal
precedent or principle that permits an administrative decision such
as the appointment of the applicant,
to be reversed unilaterally,
even on alleged illegality grounds, when opposed by the individual
effected by it, and without the
intervention of the Court.
[29] In
my view, the decisions I have referred to above have the effect that
the first respondent ought to have
launched a self-review application
first. The applicant would then have been entitled to defend it.
Until that application was
concluded she would have remained in her
position and would have been paid her salary.
[30]
The respondents unilaterally subverted that process to the
applicant’s substantial detriment. In my
view a proposed appeal
against orders 1 and 2 of the judgment of the Court a quo has little
prospects of success.
[31]
Mr. Shamase argued that the applicant is entitled to punitive costs
in this application as the respondents’
opposition is mala fide
and obviously without merit. I do not agree that the opposition to
this application was frivolous or mala
fide.
[32] I
accordingly make the following orders.
1.
In terms of
section
18(1)
and (3) of the
Superior Courts Act, 10 of 2013
, it is directed
that the orders of Sibiya J as set out in paragraphs 1 and 2 of her
typed order dated 8 April 2024, be and are
immediately operational
and executable pending the decision and outcome of the first and
second respondents petition for leave
to appeal Sibiya J’s
judgment dated 20 May 2024.
2.
The first and second
defendants are directed to pay the costs of this application on scale
B.
M. B. PITMAN
ACTING JUDGE OF THE
HIGH COURT
PIETERMARITZBURG
CASE INFORMATION
Date
reserved:
20 June 2024
Date
delivered:
21 June 2024
Appearances
Counsel
for the Applicant:
Adv
S N Shamase
Instructed
by:
Sihle
Shamase
c/o
Shabangu Attorneys
email:
sihle@srattorneys.co.za
Ref:
Mr S Shamase/FK Nene
Counsel
for the 1
st
and 2
nd
Respondent:
Adv
I Topping
Instructed
by:
Stowell
& Co
Email:
sarahw@stowell.co.za
Ref:
S Myhill/ml