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[2020] ZALAC 53
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South African Municipal Workers Union obo Mosomo v Greater Tubatse Local Municipality (JA 64/2019) [2020] ZALAC 53; [2021] 5 BLLR 494 (LAC); (2021) 42 ILJ 1047 (LAC) (2 December 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 64/2019
In the matter between:
SOUTH AFRICAN
MUNICIPAL WORKERS
UNION
OBO MOSOMA
Appellant
and
GREATER
TUBATSE LOCAL MUNICIPALITY
Respondent
Heard:
22
September 2020
Delivered:
2 December 2020
Summary: Bargaining
council---Arbitration proceedings---Review of proceedings---Employee
dismissed for flouting supply chaim management
policy---Municipal
manager appointing service providers in terms of s 36 of the
Municipal Finance Management Act---Appointments
ratified by municipal
council--- Arbitrator ignoring evidence that employee could not act
contrary to council resolution nor was
he responsible for approval of
payments---Employee could not be guilty of derelection of duties as
no evidence was adduced---Arbitration
award set aside.
Coram:
Davis JA, Jappie JA and Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE AJA:
[1]
This is an appeal against the judgment and order
of the Labour Court (Mahosi J) dismissing the review
application against
the arbitration award made under the auspices of
the South African Local Government Bargaining Council (“Bargaining
Council”),
in which the arbitrator found that the dismissal of
Mr Mosoma (“appellant”) by the Greater Tubatse
Municipality (“Municipality”)
was fair. The South African
Municipal Workers Union (“SAMWU”) acts on behalf of the
appellant in the appeal.
Condonation
Application
[2]
The appellant makes application for condonation of the late filing
of
the appeal record which was filed 20 days late. His reasons for
filing the record late was due to the refusal of the transcribing
service to issue the record to SAMWU without payment. SAMWU made
payment in late January 2020 and the transcribing service issued
the
record. It was filed on 31 January 2020 together with this
application. The Municiplaity does not oppose the application. I,
accordingly condone SAMWU’s delay in filing the appeal record.
Background
[3]
The appellant was employed by the Municipality in
2005 as an Assistant Manager: Supply Chain. In 2008, he was appointed
as Manager:
Supply Chain.
[4]
As Supply Chain Manager, the appellant was
responsible for the procurement processes and reported directly to
the Chief Financial
Officer (“CFO”) of the Municipality.
He was also a member of the Bid Adjudication Committee (“BAC”),
an
internal committee responsible for adjudicating bids and
recommending the appointment of service providers to the Municipal
Manager.
The appellant was the secretary of the BAC. His duties
entailed taking minutes and facilitating the meetings. He had no
voting
rights.
[5]
In 2011, the Municipality
concluded a memorandum
of agreement (“MOA”) with the Department of Energy (“the
Department”) in terms of
which the Municipality was given funds
for the electrification of nine defined villages within its district
for the period 1 April
2011 to 31 March 2012. In terms of the MOA, a
budget of R19 800 000.00 was allocated to the Municipality for the
electrification
project.
[6]
The Municipality invited bids from service
providers. The Bid Evaluation Committee (“BEC”) evaluated
the bids and recommended
ten service providers for appointment to the
BAC. The BAC considered these recommendations, but recommended only
one of the ten
service providers for appointment to the Municipal
Manager. The other nine did not meet the requirements as they were
not accredited
or listed on the database of Eskom, which was a
primary requirement.
[7]
The electrification project required a number of
service providers since it was to cover several villages in the
Municipal district.
The MOA which was for a period of one year from 1
April 2011 to 31 March 2012, provided rigid time-lines from which
there could
be no deviation. In the light of these constraints, one
service provider was insufficient to complete the project.
Furthermore,
in the event that the project was not completed within
the prescribed period, the Department was required to withdraw the
grant.
[8]
Therefore, when the BAC informed the Municipal
Manager of the disqualification of the nine service providers, he
referred the bids
back to the BAC for reconsideration. The BAC made
the same recommendation. On the third occasion on which the Municipal
Manager
returned the recommendation, the BAC refused to reconsider
its recommendation. It, however, advised the Municipal Manager to
explore
the provisions of the Supply Chain Management Policy to
effect the appointment of service providers for the electrification
project.
[9]
On 28 July 2011, the Department wrote to the
Municipal Manager expressing concern about the delay in the
completion of the project.
It specifically enquired into why “no
expenditure was reported to date” and why the project was
“behind
schedule”. The Department cautioned that the
Municipality ran the risk forfeiting the funding in question.
[10]
Pressed for time to conclude the project, Mr
Phala, the Municipal Manager, appointed the nine services providers
that were found
to be unsuitable by the BAC. He made these
appointments in terms of section 36 of the Supply Chain Management
Policy (“SCM
Policy”). Section 36 of the SCM Policy gives
the accounting officer (Municipal Manager) the power to deviate from
the official
procurement process established in terms of the policy
and to procure any required goods or services through any convenient
process.
Section 36 lists five instances in which it can be invoked,
one of them being an emergency. At the time that the Municipal
Manager
invoked section 36, the Department had already withdrawn part
of the funding.
[11]
The Municipal Manager through the Executive Committee subsequently
informed the Municipal
Council of the appointments in a memorandum
setting out the reasons for invoking section 36. The Municipal
Council duly ratified
the Municipal Manager’s decision to
invoke section 36 of the SCM Policy.
[12]
The service providers appointed in terms of
section 36 proceeded with the task of electrifying the villages. They
submitted invoices
to the Municipality for services rendered. The
invoices were duly authorised by the Technical Services Department
(as the end user)
and approved by the Municipal Manager. They were
thereafter processed by the Supply Chain Management division and paid
out by the
Finance Department.
[13]
On the discovery of certain discrepancies in the
electrification project, the Municipal Council set up a forensic
investigation
which uncovered purported malfeasance and
maladministration in the projects. There were also purported
irregularities uncovered
in relation to the appointment of service
providers. The forensic report was presented to the Municipal Council
and approved. It
largely implicated the Municipal Manager (Mr Phala),
the Chief Financial Officer (Mr Mogofe). It implicated the appellant
to a
lesser extent.
[14]
The
Municipal Council resolved that all those involved in the
irregularities be subjected to a disciplinary process. The appellant
was consequently suspended from duty. He was subsequently charged
with misconduct which included gross dereliction of his duties;
contravention of the SCM Policy; contravention of clause 8 of his
employment contract, abuse of power and/or procurement process,
abuse
of power and/or policies and/or regulation and/or legislation;
improper management of assets and/or gross dereliction of
duties
and/or poor performance and/or contranvention of section 63 Municipal
Finance Management Act
[1]
(“MFMA”).
[15]
The appellant raised various legal challenges
relating to the convening of a disciplinary hearing that was heard by
SALGBC and eventually
the High Court. The appellant refused to attend
a disciplinary hearing until finalisation of these challenges. The
Municipality
failed to accede to the appellant’s demands and
consequently determined, unilaterally, on the strength of the
forensic report,
that the appellant was guilty as charged. It
subsequently terminated his services.
[16]
The appellant referred an unfair dismissal dispute
to the SALGBC. Conciliation failed and the dispute was referred to
arbitration.
The
Arbitration Award
[17]
The arbitrator found the appellant’s
dismissal to be substantively fair and procedurally unfair. He,
accordingly, ordered
the Municipality to pay the appellant
compensation equivalent to four months of his salary for the
procedurally unfair dismissal.
[18]
In relation to the substantive fairness of the
dismissal, the arbitrator found that that appellant was “probably
an accomplice
to the Municipal Manager’s wrongdoing in the
irregular appointment of the service providers who were not
recommended by the
BAC”. In relation to the BAC’s
recommendation of only one of the ten service providers, the
arbitrator observed as
follows:
‘
Despite
the BAC having recommended only one service provider, Yola Consulting
to electrify Maretlwaneng village only, the [Municipal
Manager] went
ahead and appointed other service providers, inter alia Mogalemole
Consulting Engineers, Shama Consulting and Project
Managers; and Volt
Consulting Engineers; hardly within 48 hours after the BAC rejected
them as unsuitable and unqualified. It …implausible
that such
service providers would have attained the requisite skills and
proficiency within a 48 hours period…’
[19]
On
the basis of the testimony of Mr Phasha (member of the BAC) that the
appellant was the custodian of the SCM Policy, and that
he was
responsible for advising the Municipal Manager on the application of
such policies, the arbitrator found that “it
is highly probable
that the [appellant] misled the [Municipal Manager] on this matter.”
On the issue of the keeping of the
assets’ register and the
management of the Supply Chain Management department, the arbitrator
found that the appellant did
not manage that department
efficiently.
[2]
[20]
On the question of the inclusion of the villages
of Lefahla and Kutollo in the invitation and notice to bid, which
were not in the
the MOA, the arbitrator observed:
‘
The
[appellant] agreed that he included in the invitation and notice to
bid the villages of Lefahla and Kutollo, which were not
included in
the memorandum of agreement entered into between the [Department and
the Municipality]. In justifying the inclusion
thereof, the
[appellant] testified that such inclusion was approved by a Council
resolution, however he later changed tune and
averred that same were
part of the municipality’s IDP. In asserting the
inconsistencies on this aspect, the [appellant’s]
witness Ms.
Boshigo testified that she was part of the Council that approved the
inclusion of such villages. On the other hand
Mr Phala testified that
the electrictrification of those two villages was funded by the
Mine’s Social Labour Plan.’
[3]
In addition, the
arbitrator held that:
The
[appellant] was aware that as a member of the BAC that certain
service providers were rejected since they failed to meet bid
requirements and that such service providers shouldn't have been
appointed. The [appellant] can't claim inconsistency on the grounds
that certain officials at the End-user department were not
disciplined for having requested such payments. The [appellant] may
not equate himself to the officials at the Technical Service
Department who did not form form part of the BAC. It's an inescapable
fact that the [appellant] was the secretary for the BAC, and was
conversant with the issues ventilated and agreed upon at such
meetings. It will be cynicism to absolve the [appellant] on the basis
that he was solely meant to scribe minutes. The issues of
inconsistent application of disciplinary action by the respondent
doesn't feature anywhere in this matter.’
[4]
[21]
In relation to the procedural unfairness of the
dismissal, the arbitrator found as follows:
‘
In
my view, there was nothing wrong done by the [appellant] in
challenging the [Municipality’s] failure to adhere to the
provisions of its disciplinary policy and procedure at the Labour
Court. The court pronounced on the appointment of both the external
chairperson and the complainant for the [appellant’s]
disciplinary hearing.
[5]
However
, for the [appellant] to expect the [Municipality] to stand down the
disciplinary hearing pending the finalization of his
pending dispute
at the SALGBC was unplumbed and baseless. But that's when the
[Municipality] should have given the [appellant]
an ultimatum to
either attend or have his disciplinary hearing continue in his
absence. It is trite that in any case where an employee
refuses to
attend a disciplinary hearing, the employer will be compelled to
continue with a disciplinary hearing in the absence
of such employee
and render a finding at the end thereof. I find that the
[Municipality] failed to accord the [appellant] an opportunity
to
state his case in the form of a fully constituted disciplinary
hearing.
[6]
[22]
The
arbitrator found that the dismissal was procedurally unfair
[7]
but held that the procedurally unfairness (the failure to hold a
disciplinary hearing) could be cured by an order of compensation
in
favour of the appellant.
[8]
[23]
In
relation to the fairness of the sanction, the arbitrator found that
the dismissal was an appropriate sanction. In arriving at
this
conclusion, he took into account the totality of the circumstances
under which the misconduct was committed, the importance
of the SCM
Policy rule which was intended “to protect the economic status
and reputation of the Municipality and government
at large”
that was breached.
[9]
[24]
The
arbitrator accordingly upheld the dismissal of the appellant and
ordered the Municipality to pay the appellant compensation
in the
amount equivalent to four months’ remuneration calculated at
his salary scale at the time of his dismissal (November
2014) less
statutory deductions and tax.
[10]
Judgment
of the Labour Court
[25]
Aggrieved, the appellant launched an application
to review and set aside the arbitration award. As indicated, the
Labour Court dismissed
the review application. In doing so, it
reasoned as follows:
‘
In
my view, the arbitrator was reasonable in his assessment of the
evidence before him . He reached a conclusion that any reasonable
decision maker would have reached on the issue of the probabilities
of the versions placed before him. The manner in which
he analyzed
the evidence and the arguments does not support the applicants
version that he misconstrued the inquiry he had to conduct
or that he
ignored materially relevant facts . The [appellant] further failed to
establish that the arbitrator conducted
the inquiry incorrectly
because , as the award reflects, he dealt with the issue before him
correctly and he considered all the
evidence that was placed before
him. What the appellant seeks to do in this application is to bring
an appeal against the decision
off the commissioner in the guise of a
review.’
[26]
The Labour Court accordingly found that the
appellant had failed to establish any basis upon which it could find
that the arbitrator’s
award was reviewable, hence there was no
basis to interfere with his award.
Review
Test
[27]
The
test that the Labour Court is required to apply in a review of an
arbitrator’s award is this: “Is the decision reached
by
the commissioner one that a reasonable decision-maker could not
reach?”
[11]
To
maintain the distinction between review and appeal, an award of an
arbitrator will only be set aside if both the reasons
and the result
are unreasonable. In determining whether the result of an
arbitrator’s award is unreasonable, the Labour Court
must
broadly evaluate the merits of the dispute and consider whether, if
the arbitrator’s reasoning is found to be unreasonable,
the
result is, nevertheless, capable of justification for reasons other
than those given by the arbitrator. The result will, however,
be
unreasonable if it is entirely disconnected with the evidence,
unsupported by any evidence and involves speculation by the
arbitrator.
[12]
Analysis
[28]
The first contention advanced by the appellant
in the appeal is that the Labour Court erred in endorsing the finding
of
the arbitrator
that the appointment of the service providers was done contrary to
the SCM Policy. In this regard, the appellant
contends that: (a) he
had no voting rights in the BAC and that the decision of the BAC was
taken by the voting members; (b) The
BAC advised the Municipal
Manager to explore the provisions in the SCM Policy in order to
effect the appointment of the other service
providers; (c) the
Municipal Manager invoked section 36 of the SCM Policy and the
appellant was not involved in such advice; (d)
The Municipal Council
acting on the advice of the Municipal Manager resolved and ratified
the appointment in terms of section 36
of the SCM Policy; (e) the
letters of appointment of the service providers were issued and
signed by the Municipal Manager.
[29]
It is established on the evidence that the BAC
did, indeed, advise the Municipal Manager to explore the provisions
in the SCM Policy
in order to effect the appointment of service
providers “outside the normal open competitive bidding
process”.
[30]
The Municipal Manager submitted a report to the
Municipal Council in relation to the section 36 appointments of the
service providers
and on 17 October 2011, the Municipal Council
condoned the decision in the following terms:
‘
Resolved:
That
Council noted the urgency of the implementation for electrification
projects;
That
the Council condoned the section 36 appointment of Consultants for
implementation of the electrification projects: Mafarafara,
Ga-Malepe, Maretlwaneng, Mankele, Mamogolo, Motshana, Moraba,
Mokgotho and Lefahla;
That
the section 36 appointments be reported to Treasury and the
Auditor-General for MFMA reporting compliance purposes.’
[31]
When the appellant signed the internal
purchase requisition forms for payment of the service providers who
were appointed
in terms of section 36 of the SCM Policy, he acted
lawfully as their appointment was sanctioned by the Municipal
Council. In this
regard, he testified that from a procedural
point
of view, after a Council resolution condones any section 36
appointments made by the Municipal Manager, letters of appointment
and service level agreements (SLA) would then be generated by the
Legal Services Department and Technical Services Department.
[32]
A payment certificate will thereafter be generated
by the service provider concerned for work done, and the Project
Manager will
verify that the work done and the payment claimed is
within budget. He or she will furthermore verify that the service
provider
was properly appointed either through an open bid process,
or in terms of section 36 or section 32 of the SCM Policy. The
relevant
documents are then sent to the Technical Services Director
who then makes a recommendation to the Municipal Manager to approve
the payment. Once the Municipal Manager has approved the payment, the
Technical Services Director will forward all the relevant
documents,
such as the appointment letter, SLA Agreement, payment certificate
etc, to the Supply Chain Manager who then is required
to process an
internal purchase requisition for payment. The Municipal Manager is
responsible for the final approval of the payment
and not the
appellant.
[33]
The appellant testified that he would have been
charged with insubordination if he refused to process and sign the
internal purchase
requisition form, because at the time there was a
Municipal Council resolution which ratified their appointment by the
Municipal
Manager in terms of section 36 of the SCM Policy, and he
did not have the authority to defy that. The fear raised by the
appellant
cannot be ignored, as it was made clear in the testimony of
Mr Phasha that when he refused to sign the internal purchase
requisition
form, he was given an intention to suspend notice for
defying the authority of the Municipal Council. According to Mr
Phasha’s
evidence, after he refused to sign the internal
purchase requisition, the CFO signed and payment to the service
providers in question
was effected.
[34]
The appellant maintained in his testimony that he
was not guilty of any offence as he was not responsible for approving
payments
to service providers. The Municipal Manager or the CFO
approved those payments. He said that the signing of the internal
requisition
purchase form did not constitute approval of payment, but
merely confirmed that the service providers were properly appointed,
that their payments were approved by the Municipal Manager or CFO and
that the requisite documents were attached for disclosure
purposes.
[35]
In
my view, the appellant’s
testimony
that he would have been charged had he not obeyed the Council
resolution cannot be discounted as he was bound by the Council
resolution. In
Manana
v King Sabbata Dlindyebo Municipality
,
[13]
(
Manana
)
the Supreme Court of Appeal held that once a resolution is adopted by
a Municipal Council, its officials
are
bound to execute it, whatever the view they might have on the merits
of the resolution in law or otherwise until such time as
it is
rescinded or set aside on review.’ The Labour Court therefore
erred in dismissing, out of hand, the principle articulated
in
Manana
relating to the status of a council resolution, as having no
application to this matter.
[36]
Accordingly, there was no basis on the evidence
for the arbitrator to have held the appellant responsible for
approving the payments
to the service providers that were appointed
by the Municipal Manager in terms of section 36 of the SCM Policy.
[37]
The Labour Court furthermore erred in
confirming the arbitrator’s finding that that “it is
highly probable that the
appellant misled the Municipal Manager”.
In arriving at this conclusion, the arbitrator gave undue weight to
the evidence
of Mr Phasha that, as the custodian of the SCM Policy,
the appellant was required to advise the Municipal Manager on its
application,
while ignoring the evidence of Mr Phala (the Municipal
Manager at the time).
Mr
Phala expressly refuted the allegation that he was misled by the
appellant. He made it clear in his testimony that the appellant
was
not involved in his decision to invoke section 36 of the SCM Policy.
That was entirely his own decision which was subsequently
ratified or
“condoned” by the Municipal Council. It was also
established on the evidence that the appellant was not
involved in
drafting the letters of appointment for the service providers.
Although the appellant testified that the Municipal
Manager (Mr
Phala) drafted these letters, it emerged from the testimony of Mr
Phala, that the appointment letters were brought
to him by the CFO
and the Director:Technical Services. There is accordingly no evidence
on record that indicates that the appellant
misled the Municipal
Manager or was complicit in the irregular appointment of the nine
service providers in terms of section 36
of the SCM Policy. The
arbitrator’s conclusion in this regard was not founded on fact
but rather on conjecture or speculation.
[38]
The arbitrator found that the appellant had failed to report the
deviations in terms
of section 36 to National Treasury and the
Auditor-General. Mr Morathi testified that the appellant had totally
failed to report
these deviations to National Treasury and the
Auditor-General, while Mr Phasha testified that the appellant had
only reported them
“after an audit query was made and the
[appellant] tried to rectify this”. Mr Phasha’s testimony
as well as that
of Mr Morathi was inconsistent with the evidence of
both the appellant and Mr Phala (the Municipal Manager at the time)
that the appellant had submitted a report detailing the
section 36 deviations from the MOA to the National Treasury and the
Auditor-General.
Their evidence is supported by documentary evidence
forming part of the appeal record, which shows that the appellant
submitted
the deviation report to the National Treasury and the
Auditor-Genertal in July 2011. The Municipality failed to adduce
documentary
proof of the audit query that Mr Phasha alluded to in his
evidence. In the circumstances, an arbitrator, acting within the
scope
of a reasonable arbitrator would have accepted the evidence of
the appellant and Mr Phala over that of Mr Morathi and Mr Phasha.
[39]
The Labour Court erred in simply ignoring this finding of the
arbitrator. Had it
considered this finding in relation to the
evidence that was led at the arbitration hearing, it would have
concluded that the arbitrator’s
finding on this aspect was
inconsistent with the established evidence.
[40]
The Labour Court furthermore erred in ignoring the finding of the
arbitrator that
the appellant admitted at the arbitration hearing
that he had included, in the invitation and notice to bid, the
villages of Lefahla
and Kutolla which were not included in the MOA.
The arbitrator ignored the evidence that the village of Lefahla was
included in
the Council resolution approving the section 36
deviations. He also ignored the evidence that the forensic report
itself did not
implicate the appellant in the decision to
include the two villages in the invitation and notice to bid. It only
implicated
Mr Phala, the Municipal Manager at the time.
[41]
The arbitrator also ignored the evidence of the appellant that both
villages were
part of the Municipal’s budget on the
electrification project. It also ignored the evidence of Ms Boshigo,
the Chairperson
of the BAC, who testified that the Municipal Council
recommended that the two villages be included in the electrification
project
since they were sharing borders with the villages that were
to be electrified in terms of the MOA. The arbitrator also ignored
the evidence of both Ms. Boshigo and Mr Phala (the Municipal Manager
at the time) that the appellant did not have the power to include
villages in the MOA. On this aspect, the appellant testified that he
did not have control of what was advertised in the invitation
to
tender. He merely drafted the advertisement/invitation as guided by
the Bid Specification Committee and the Technical Services
Department
as the end-user. The advertisement/invitation was approved not by Mr
Phala but rather by his predecessor, acting Mayor,
Mr MF Mokoko.
[42]
Mr Phala indicated, in his testimony, that the two villages were
added to the invitation
to bid for the following reasons: Lefahla
would have been the only village which was left out of the
electrification project in
the Municipal district and this would have
resulted in protest action by community members. Electrifying Lefahla
at the same time
as the other villages would have also save the
Municipality costs of electrifying it at a later stage. The
Municipality decided
to use its savings from other electrification
projects and later claim those costs back from the Department.
Kutullo
,
on the other hand was funded by Social Labour Plan of
the mine in the Municipla district and not by the Department in
terms
of the MOA. The arbitrator erred in simply discounting this
evidence. In particular, because there was no counterveiling evidence
presented by the Municipality.
[43]
Lastly, the Labour Court erred in confirming the finding of the
arbitrator that the
appellant was responsible for the asset register.
If the Labour Court had regard to the evidence on record, it would
have established
that the forensic report does not implicate the
appellant in the failure to keep the asset register. The report
implicates the
Municipal Manager and the Chief Financial Officer at
the time. This is consistent with the evidence of Mr Phala (the
Municipal
Manager at the time) that the Chief Financial Officer was
responsible for the asset register and not the appellant. In
corroboration,
the appellant testified hat there was an assistant
manager reporting directly to the Chief Financial Officer in relation
to this
function.
[44]
The arbitrator found that the appellant failed to manage the Supply
Chain Management
Department efficiently. He drew this inference from
the failure or refusal of the appellant, under cross-examination, to
answer
a question on whether he managed this division efficiently.
The appellant’s refusal to answer this question cannot, without
more, make him guilty of the charge of failing to either keep the
asset register or manage the Supply Chain Management Department
efficiently. On the whole, the Municipality failed to present any
evidence demonstrating the manner in which the appellant failed
to
manage the Supply Chain Management Department efficiently.
[45]
Lastly, the Labour Court found that “the Municipality was faced
with irregularly
appointed service providers which may have resulted
from conceivably corrupt conduct of its own employees as opposed to
validity
of a contract or its resolution”. This finding is not
supported by any the evidence. Crucially, no evidence was led by the
Municipality, at the arbitration hearing, to show that the conduct of
the appellant (or for that matter the Municipal Manager at
the time)
constituted corrupt conduct. Notably, and as is apparent from Mr
Phala’s evidence
the Municipality
settled its misconduct case against him. The Chief Financial Officer
was also not found guilty as the Municipality
was unable to prove its
case against him. Yet it persists in the case against the appellant
on the very same charges.
[46]
What is more, it was established on the evidence that the purported
irregular appointments
of the service providers were never challenged
in a court of law. The service providers concluded the work on the
electrification
project which they were appointed to carry out, and
were subsequently paid. Their contracts were never cancelled nor did
the Municipality
claim the payments back. Furthermore, the
appointment of the service providers and payment vouchers were
disclosed to, and audited
by, the Auditor-General, and there was no
determination that they amounted to unauthorised, fruitless and
wasteful expenditure
as alleged by the Muncipality.
[47]
At the arbitration hearing, the appellant claimed inconsistency of
disciplinary action
on the grounds that the Municipality had not
disciplined certain other members of the BAC and BEC for initiating
and requesting
payments for the service providers appointed by the
Municipal Manager. The arbitrator dismissed this contention out of
hand by
stating that “the [appellant] may not equate himself to
the officials at the Technical Services Department who did not form
part of the BAC”.
[48]
There is merit in the appellant’s contention. He seems to have
been singled
out as a member of the BAC (on the basis that he was
aware of its decision disqualifying the nine service providers) and
disciplined
for signing the internal purchase requisition form for
purposes of payment of the irregularly appointed service providers.
Yet
other members of the BAC, such as Mr Bruce Mohlaba,
Director:Technical Services, and Mr Malungane Eugene, Project Manager
(also
a member of the BEC), initiated and signed the payment
certificates that were approval by the Municipal Manager and
ultimately
paid by the Finance department. They would have been just
as aware of the BAC decision rejecting the nine service providers, as
was the appellant yet they were not charged. It is equally perplexing
why the former Municipal Mayor (Mr MF Mokoko) who approved
the
invitation to bid (which included Lefahla and Kutollo villages) and
members of the Bid Specification Committee and the Technical
Services
Department who guided the appellant in drafting the invitation to bid
were not disciplined. The arbitrator’s finding
that the
inconsistent application of disciplinary action did not feature in
this matter was, therefore, completely out of sync
with the evidence
and appellant’s argument based thereon.
[49]
The arbitrator’s failure to properly apply his mind to the
evidence that was
led in the arbitration hearing is a reviewable
irregularity that justified interference on review by the Labour
Court. But for
this irregularity which was material to the outcome of
the arbitration, the arbitrator would have arrived at a different
decision
. The Labour Court, in my view, endorsed the findings of the
arbitrator without giving any consideration to the evidence that was
led at the arbitration hearing. Had it paid closer attention to the
evidence, the Labour Court would have readily recognised that
the
arbitrator’s decision that the appellant’s dismissal was
substantively fair, is a decision that a reasonable arbitrator
would
not have come to on the totality of the evidence before him/her.
[50]
I consider the appellant to be entitled to reinstatement. There is no
evidence on
the record which points to reinstatement being
impractical or inappropriate in the circumstances.
[51]
For all these reasons, the appeal must succeed.
Costs
[52]
The appellant is represented by SAMWU in the appeal. SAMWU also
represented him in
the review application. I accordingly consider
it fair and just not to make a costs order against the Municipality
in either
the review application or the the appeal.
Order
[53]
In the result, I make the following order:
1.
The appeal is upheld with no order as to costs.
2.
The order of the Labour Court is set aside and replaced with
the
following order:
‘
1.The
dismissal of the applicant is substantively and procedurally unfair.
2.The applicant is
reinstated from date of his dismissal;
3.
There is no order as to costs.’
_______________________
F Kathree-Setiloane AJA
Davis
JA and Jappie JA concur:
APPEARANCES
FOR THE APPELLANT:
Mr
F Baloyi
Instructed by Maenetja
Attorneys
FOR THE RESPONDENT:
IM
Shonge Attorneys
Instructed
by IM Shongwe Attorneys
[1]
No.
56 of 2003.
[2]
Arbitration
Award, paras 22-23.
[3]
Arbitration
Award, para 24.
[4]
Arbitration
Award, para 29.
[5]
Arbitration
Award, para 34.
[6]
Arbitration
Award, para 35
[7]
Arbitration
Award, para 36.
[8]
Arbitration
Award, para 38.
[9]
Arbitration
Award, paras 37-38.
[10]
Arbitration
Award, paras 30-41.
[11]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) para 110.
[12]
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[2012] BLLR 1074
(SCA) paras 12 and 13.
[13]
Manana
v King Sabata Dalindyebo Municipality
[2011]
3 BLLR 215
(SCA).