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[2021] ZALAC 1
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Bitou Municipality v Minister for Local Government, Environmental Affairs and Development Planning, Western Cape Provincial Govt and Others (CA14/2019) [2021] ZALAC 1; [2021] 5 BLLR 435 (LAC); (2021) 42 ILJ 993 (LAC) (12 February 2021)
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
LAC case no: CA14/2019
Labour Court case no: C180/2019
In the matter between:
THE
BITOU MUNICIPALITY
Appellant
and
THE MINISTER FOR LOCAL GOVERNMENT,
ENVIRONMENTAL AFFAIRS & DEVELOPMENT
PLANNING, WESTERN CAPE PROVINCIAL GOVT.
First
Respondent
THE SPEAKER: BITOU MUNICIPALITY
Second Respondent
THE EXECUTIVE MAYOR: BITOU MUNICIPALITY
Third
Respondent
LONWABO MNINAWA RONALD NGOQO
Fourth
Respondent
THE MINISTER OF CO-OPERATIVE GOVERNANCE
AND TRADITIONAL
AFFAIRS
Fifth Respondent
PLETTENBERG BAY RATEPAYERS AND
RESIDENTS
ASSOCIATION
Sixth Respondent
Heard:
16 September 2020
Delivered:
The date shall be
deemed to be that on which the judgment is e-mailed to the parties.
Coram:
Davis JA, Coppin JA and
Kathree-Setiloane AJA
JUDGMENT
COPPIN JA
[1]
This is an appeal, with the necessary leave, against the judgment of
the Labour Court
(Nieuwoudt AJ) in favour of the respondents, and in
terms of which the following was declared invalid and set aside: (a)
a settlement
agreement concluded between the appellant and the fourth
respondent in terms of which they purport to settle the dispute
concerning
the appellant’s dismissal of the fourth respondent
as its municipal manager; and (b) the decision of the appellant to
reappoint
the fourth respondent to that same position in terms of
section 56(1) of the Local Government: Municipal Systems Act
[1]
(“the Systems Act”) and Appointment Regulations.
[2]
[2]
There are three major issues for determination in this appeal.
Firstly, the
locus
standi
(i.e. standing) of the first respondent in this appeal in the
bringing of the application in the court a quo; secondly, whether
the
first respondent was entitled to bring that application without first
complying with the provisions of section 45 of the Intergovernmental
Framework Act
[3]
(“IGFRA”); and, thirdly, the legality of the settlement
agreement and the appellant’s re-appointment of the fourth
respondent.
[3] The first
respondent cross-appealed the order of the court a quo in respect of
the
following: (a) its refusal to strike out matter from the
appellant’s answering affidavit in the application brought in
that
court; and (b) the fact that the court a quo did not hold the
fourth respondent personally jointly and severally liable with the
appellant for the first respondent’s costs in that court.
[4] The fourth
respondent did not oppose the relief sought by the first respondent
in
the court a quo and abided by that court’s decision.
However, heads of argument were filed on its behalf shortly before
the
hearing of the matter in this Court. The fourth respondent’s
counsel argued that he was entitled to make submissions on appeal
notwithstanding his stance on the matter in the court a quo. The
submissions were in material respects the same as those of the
appellant. In light of the cross-appeal of the first respondent
relating to the issue of costs, the fourth respondent’s counsel
was only allowed to make submissions on that issue.
[5]
The Plettenberg Bay Ratepayers’ and Residents’
Association applied to
be joined as a respondent, alternatively to be
permitted to make submissions in this Court as an
amicus
.
Its application for joinder was not opposed and both the appellant
and the fourth respondent gave notice of their respective intention
to abide by the decision of this Court on the matter. In light of
their apparent substantial interest in the matter,
[4]
the Ratepayers’ Association was granted leave to join as an
interested party in these proceedings. They are cited as the
sixth
respondent.
[6] This
judgment deals, firstly, with the background facts, which are
essentially common
cause, secondly, with the question of the first
respondent’s standing, thirdly, with the question of compliance
with IGFRA,
fourthly, with the legality of the appellant’s
re-employment of the fourth respondent, penultimately, with the first
of respondent’s
cross-appeal, and lastly, and very briefly,
with the costs and the relief.
Background
facts
[7] The fourth
respondent was first appointed as the municipal manager at the
appellant
on 1 March 2008. On 5 September 2011, he was charged with
misconduct relating to the purchase of a certain property. Having
been
found guilty of certain of those charges in a disciplinary
hearing chaired by a retired judge, Judge Combrinck, he was dismissed
by the appellant on 7 February 2012.
[8] By March
2012, the fourth respondent had sought and obtained employment at the
Sundays River
Municipality, even though he had referred an unfair
dismissal dispute, in respect of his dismissal by the appellant, to
the South
African Local Government Bargaining Council (“the
SALGBC”). Following an arbitration before a Commissioner in
that
forum, an award was handed down on 22 October 2012 in which the
fourth respondent’s dismissal was found to be substantially
and
procedurally unfair and directing the appellant to reinstate the
fourth respondent and pay him back-pay.
[9] During
December 2012, the appellant brought an application in the Labour
Court to
review and set aside that award. On 12 February 2014, the
review application was heard in the Labour Court by Lallie J, who
handed
down an order on 24 October 2014 reviewing and setting aside
the SALGBC award and remitting the matter back to that forum for a
hearing
de novo
before a different arbitrator.
[10] On 14 November 2014, the
fourth respondent, opting not to pursue the arbitration route,
brought an
application in the Labour Court for leave to appeal Lallie
J’s order. He reserved his right to supplement that application
upon receipt of reasons from the judge.
[11] From about mid-November
2014 to about February 2015, the appellant and fourth respondent
attempted
to negotiate a settlement of the dismissal dispute. After
the fourth respondent, upon enquiry by his attorneys, was referred by
the appellant’s then attorney of record to the judgment of
Lallie J, he filed a supplementary notice of application for leave
to
appeal in the Labour Court on 22 or 23 March 2017 (i.e. some two
years later), and it was not accompanied by an application
for
condonation. However, the appellant and fourth respondent continued
with attempts to settle the dismissal dispute.
[12] As part of an opinion the
appellant obtained from its attorneys as to how it was to react to
the fourth
respondent’s supplementary notice, the appellant was
advised, in essence, that the application for leave to appeal would
be refused because of the fourth respondent’s delay; and that
if the fourth respondent chose to pursue the arbitration as
ordered
by Lallie J, the prospects of success of that arbitration could only
be determined at that point, in order to decide whether
to oppose, or
settle the matter.
[13] By November 2018 the fourth
respondent had not prosecuted the application for leave to appeal any
further.
At the time of argument in this Court, on 16 September 2020,
almost six years had passed since that application was brought by the
appellant.
[14] During November 2018 the
then incumbent municipal manager of the appellant gave notice of his
intention
to resign. The executive mayor, on behalf of the appellant,
then sought candidates to fill the vacancy of municipal manager. The
fourth respondent was also approached on 5 November 2018 and he
indicated his availability and willingness to be seconded to the
appellant. He was then requested to furnish a settlement agreement
(i.e. the 2013 proposal) that had to be signed by one Counsellor
Booysen of the appellant. It was never signed by Counsellor Booysen
and was seemingly never signed by the fourth respondent.
[15] The Executive Mayor also
contacted the office of the National Minister to enquire about the
possible secondment
of the fourth respondent to the appellant. Upon
receiving feedback, to the effect that the fourth respondent was
available and
that he met the competence requirements, the executive
mayor requested the fourth respondent’s secondment.
[16] On 11 November 2018, the
then incumbent municipal manager of the appellant tendered his
resignation.
Having accepted the notice, the appellant proceeded to
advertise the post of municipal manager and requested applications
for the
same to be submitted by 10 December 2018.
[17] The then incumbent
municipal manager was released from his office with effect from 23
November 2018 and a
director from within the appellant was appointed
to that position in an acting capacity for a maximum period of three
months, pending
a permanent appointment to that position.
[18] The fourth respondent
applied for the position on 10 December 2018. He, inter alia,
indicated in his
application that he had been dismissed by the
appellant for “misrepresentation” and that the matter was
before this
court. He also stated that he had left the appellant “for
better prospects”.
[19] Apparently settlement
negotiations between the executive mayor and fourth respondent
continued. On
11 January 2019, the fourth respondent’s
attorneys sent a new settlement proposal to the executive mayor and
the acting municipal
manager (i.e. “the 2019 settlement
proposal”). It was initially framed as a settlement agreement
to be concluded under
the auspices of the SALGBC and also contained a
note that the parties had to consider whether to make it an order of
the Labour
Court, although it had been drafted on the basis that it
would be made an arbitration award.
[20] On 10 January 2019, a
shortlist of candidates for the post was sent to COGTA (i.e. the
Department of
Corporative Government and Traditional Affairs). As
COGTA was aware of the fourth respondent’s dismissal, it
cautioned against
his re-appointment in light of the ban that applied
to such dismissals. Notwithstanding, the fourth respondent was
interviewed
where he, inter alia, confirmed that he had preferred to
approach this court concerning his dismissal.
[21] On 31 January 2019, the
appellant’s attorneys furnished it with an opinion advising,
inter alia,
(a) that in order to remove the bar to the fourth
respondent’s re-employment the settlement had to contain a
provision setting
aside his dismissal; (b) that the parties should
consider making the settlement agreement an order of the Labour Court
and in terms
of it abandon Lallie J’s judgment; alternatively,
(c) make it an order of the SALGBC; and (d) that the fourth
respondent
could not be re-employed unless the bar to his
re-employment had been removed.
[22] The appellant obtained an
opinion on the matter on an urgent basis from senior counsel. On 18
February
2019, the Council of the appellant passed a resolution,
essentially, mandating the executive mayor, Mr Lobese, to: (a)
conclude
a settlement agreement with the fourth respondent; (b) make
an offer of employment to the fourth respondent if he had accepted
the full and final settlement; (c) negotiate an employment contract
with the fourth respondent; (d) submit a written report regarding
the
appointment of the fourth respondent to the first respondent (i.e.
the MEC); and (e) obtain the “concurrence” of
the first
respondent regarding the appointment.
[23] The settlement agreement
was signed on 21 February 2019. The executive mayor, acting on behalf
of the
appellant, sent the report, as envisaged in section 54A(7) of
the Systems Act, to the first respondent.
[24] After an exchange of
correspondence between the State Attorney, acting on behalf of the
first respondent,
and the appellant’s attorneys, the first
respondent caused a further letter to be sent to the appellant in
which he alleged
that there were shortcomings in the report and
requested further documentation from the appellant. Upon receipt of
the documentation,
the first respondent, through the State Attorney,
informed the appellant that the appointment of the fourth respondent
was irregular
and that he would be bringing urgent court proceedings
to set it aside, unless the fourth respondent voluntarily vacated the
position
at the appellant by 17h00 on 12 March 2019.
[25] After another exchange of
correspondence, the first respondent brought the application on 18
March
2019 to set aside the settlement agreement, as well as the
appointment of the fourth respondent. Seemingly unperturbed, the
appellant
and the fourth respondent proceeded to formalise the
latter’s appointment. On 25 March 2019, a written contract of
employment
was concluded between them.
Proceedings
in the court a quo
[26] As mentioned at the outset,
the appellant was the only party which opposed the relief sought by
the first
respondent. The matter was heard on 8 and 9 July 2019 and
the impugned order of Nieuwoudt AJ was handed down on 13 August 2019.
[27] Having found that it had
jurisdiction to review and pronounce on the lawfulness of the
settlement agreement
and the fourth respondent’s appointment,
the court a quo went on to make various findings, including those
regarding the
first respondent’s standing to bring the
application. I shall deal with the relevant findings later in
this judgment.
[28] The court a quo made the
following order: “
1
. The settlement agreement entered
into between the [appellant] and the fourth respondent on or about 21
February 2019 is reviewed
and set aside.
2
. The appointment of
the fourth respondent by the [appellant] on or about 21 February 2019
is reviewed and set aside.
3
. The further application to
strike out by the [appellant] is refused.
4
. The [appellant] is
ordered to pay the [the first respondent’s] costs, inclusive of
costs of two counsel, save for the costs
occasioned by the portions
of the papers of the [first respondent] that had been struck out and
the responses thereto.”
The first respondent’s standing
[29] The court a quo held that
the first respondent had
locus standi
to bring the application
because of his obligations in terms of section 54A of the Systems Act
and the Appointment Regulations.
The first respondent had averred
that in bringing the application he was acting in terms of his
“monitoring and support function
contained in sections 154 and
155 of the Constitution of the Republic of South Africa, 1996
(Constitution) and compliance duties
contained in section 54A of the
Systems Act”.
[30] The court a quo concluded
that what had to be decided was whether the first respondent “was
entitled
and obliged to act in terms of the provisions of s 54A(8) of
the Systems Act…despite the fact that it had become invalid
prior to the institution of the proceedings.” The section
provided that if a person was appointed in contravention of section
54A the MEC for local government had, within a stipulated time, to
take appropriate steps to get the municipal council to comply
with
the section. The steps included approaching a court for a declaration
on the validity of the appointment, and for other relief.
[31] The court a quo rejected
the argument made on behalf of the appellant that in those
circumstances the
first respondent had no
locus standi
. It
upheld the argument made on behalf of the first respondent that if he
did not have standing in those circumstances, i. e. was
unable to
exercise the rights and obligations that he had under the Systems
Act, it would be tantamount to making the declaration
of invalidity
of that section retrospective. The court a quo accordingly found that
the first respondent (i.e. the applicant in
that court) had the
necessary standing to bring the application.
[32]
Section 54A also,
inter
alia,
required the Municipal Council in respect of the appointment of a
municipal manager, to inform the MEC for Local Government of
the
appointment process
[5]
and of the outcome of that process (as prescribed). The MEC, in turn,
was obliged to provide the Minister responsible for Local
Government
with that information
[6]
.
[33] In terms of section 54A(9),
if the MEC failed to take the steps as contemplated in section 54A(8)
the
Minister was empowered to do so.
[34]
It was clearly implied in section 54A(8) that the MEC had a duty to
satisfy himself/herself that the
appointment process and outcome was
in compliance with the Systems Act. The MEC and the Minister’s
determination of compliance
was not confined to a consideration of
information provided by the Municipal Council, because the
information may not have disclosed,
for example, that certain
information had not been taken into account, or that the information
was not canvassed with the appointee
and investigated and properly
taken into account when the appointment was made.
[7]
[35]
In
South
African Municipal Workers Union v Minister of Co-operative Governance
and Traditional Affairs
[8]
(“SAMWU”) the Constitutional Court had declared the
legislation that introduced, inter alia, section 54A into the Systems
Act, namely, the Local Government: Municipal Systems Amendment Act
[9]
(“the Amendment Act”) invalid, but suspended the
declaration of invalidity for a period of 24 months. And even though
it omitted to state expressly in the order that the declaration
operated prospectively, effectively, the judgment of the majority
made that ruling
[10]
.
Khampepe J, writing for the majority, stated:
“
A great host of decisions and actions have been
taken across all five provinces under the Amendment Act. To allow the
invalidity
to operate retrospectively would plainly cause disruption
to the orderly and effective administration of municipalities. This
would
be untenable.
For these reasons, the
declaration of invalidity must operate prospectively.
”
[11]
(emphasis added)
[36] The Amendment Act also
introduced section 57A into the Systems Act, which is discussed
later. It is
noteworthy that the Amendment Act was not declared
invalid because of the substantive contents of sections 54A or 57A,
but because
the wrong procedure had been followed with its
enactment.
[37] In light of that
declaration of invalidity the appellant had argued in the court a quo
that the first
respondent could not rely on section 54A as a basis
for his standing in bringing the application, because the period of
suspension
of the declaration came to an end on 9 March 2019, and the
first respondent only brought the application thereafter, on 18 March
2019, by when, according to this argument, the first respondent no
longer had the necessary standing. The same argument was made
on
behalf of the appellant on appeal.
[38] It was submitted on behalf
of both, the first respondent and the sixth respondent, that the
court a
quo was correct in its finding and that the argument of the
appellant, which was essentially to the effect that the declaration
of invalidity operated retrospectively, was untenable.
[39] In this Court, the
appellant’s counsel in argument clearly accepted that for the
duration of
the period of suspension of the declaration the
provisions of section 54A of the Systems Act were valid and
enforceable, and that
the first respondent was obliged to comply with
them. As the appointment of the fourth respondent by the appellant
occurred within
this period, i.e on 21 February 2019, it was subject
to those provisions.
[40]
The rationale for suspending the declaration of invalidity and
ordering that it shall operate prospectively,
is to promote justice
and equity,
[12]
which includes the avoidance of “the dislocation and
inconvenience of undoing transactions, decisions or actions taken
under
(the invalidated) statute”.
[13]
[41] It is clear from the common
cause facts that, upon being made aware of the appointment, the first
respondent
engaged the appellant concerning its regularity and
legality, as he was entitled to in terms of section 54A(8) of the
Systems Act.
It could clearly not be reasonably expected of him to
immediately rush to court. That would have been the ultimate step in
a process.
[42]
To effectively rule, as the appellant would have it, that when the
suspensive period came to an end
the first respondent was barred from
taking the ultimate step of issuing court process, appears to be
inconsistent with the very
rationale for the suspension and
prospectivity of the declaration. That would plainly be disruptive of
the process which had been
embarked upon by the first respondent when
he was clearly obliged to do so in terms of the applicable legal
regime at the time.
[14]
It is clearly not in the interest of justice and equity to allow such
disruption or dislocation.
[43]
Nevertheless, the first respondent, as MEC, also has a monitoring and
oversight role regarding the
employment, discipline and re-employment
(i.e. in municipalities) of senior managers, including municipal
managers, in terms of
the Appointment and Disciplinary
Regulations
[15]
that were promulgated in terms of section 120 of the Systems
Act. Since these regulations were not affected by the declaration
of
invalidity in
SAMWU
,
they were valid and applicable at the time of the fourth respondent’s
dismissal and his re-employment by the appellant.
[44] Moreover, in light of the
circumstances of this case as well as the approach to standing under
the
Constitution, it can hardly be contended, in a matter of obvious
public interest, such as the present, that the first respondent
has
no
locus standi
to challenge the appointment of a public
servant by a public body, i.e the appellant. The adoption of a
formalistic and technical
approach to standing, as contended for by
the appellant, is not appropriate in this matter.
[45]
In
Merafong
City (LAC)
,
[16]
this Court, in dealing with the issue of standing in the context of
the appointment of a municipal manager, rejected the narrow,
formalistic approach to the issue, and instead, applied the broad
flexible approach to standing adopted by the Constitutional
Court in, inter alia,
Ferreira
v Levin NO and Others: Vryenhoek v Powell and Others (“Ferreira”)
[17]
and
followed by the High Court in
Vulindlela
Furniture Manufacturers (Pty) Ltd v MEC
,
Department
of Education and Culture, Eastern Cape and Others
[18]
,
to the appointment of a municipal manager, which is,
quintessentially, a public interest matter. In terms of the latter
approach
emphasis is placed on the court’s discretion to
determine whether there is sufficient interest in light of the
circumstances.
[46]
The “
narrow,
formalistic approach
”
is inappropriate in matters with a public interest element, or in
matters of a constitutional (including administrative
law) nature. In
Ferreira
O’Regan
J gave the reason, as follows:
‘
Existing
common law rules of standing have often developed in the context of
private litigation. As a general rule, private litigation
is
concerned with the determination of a dispute between two
individuals, in which relief will be specific and, often,
retrospective,
in that it applies to a set of past events. Such
litigation will generally not directly affect people who are not
parties to the
litigation. In such cases the plaintiff is both
a victim of the harm and the beneficiary of the relief. In litigation
of
a public character, however that nexus is rarely so intimate.
The relief sought is generally forward-looking and general
in
its application, so that it may directly affect a wide range of
people. In addition the harm alleged may often be quite
diffuse
or amorphous.’
[19]
[47]
This matter is not one of private litigation. It clearly has a public
law character. The application
was brought by the first respondent in
the public interest, namely, for the setting aside of the
appointment, by a state organ
(i.e. the appellant), of the municipal
manager, a public office-bearer.
Compliance with IGFRA
[48] Section 45(1) of IGFRA
provides: “No government or organ of state may institute
judicial proceedings
in order to settle an intergovernmental dispute
unless the dispute has been declared a formal intergovernmental
dispute in terms
of section 41 and all efforts to settle the dispute
in terms of this chapter were unsuccessful.”
[49]
In dealing with the argument made on behalf of the appellant in the
court a quo, namely, that the first
respondent was not entitled to
approach that court because he did not first comply with section
45(1) of IGFRA, the court a quo,
relying on what was held by the High
Court in
City
of Cape Town v Premier, Western Cape and Others,
[20]
concluded that it had a discretion to entertain the matter even
though the parties did not make every reasonable effort to settle
the
dispute before, and that taking into account the facts, the urgent
court application brought by the first respondent was justified.
The
court a quo also took into account the provisions of section 39(1)
(a)
of
IGFRA, to the effect that the chapter referred to in section 45(1) of
that Act does not apply to disputes in respect of which
other
national legislation provides resolution mechanisms, or procedures.
[50] During argument in the
appeal hearing, in this Court, the appellant repeated the stance it
took in
the court a quo, though with less conviction.
[51] Section 39(1)
(a)
of
IGFRA provides the complete answer. It can hardly be contended that
section 54A of the Systems Act is not “other national
legislation” that provided resolution mechanisms and
procedures, as envisaged in section 39(1)
(a).
The court a
quo’s conclusion, that the first respondent did not have to
first comply with section 45(1) of IGFRA, is thus
unassailable.
The legality of the fourth respondent’s
re-appointment
[52] The first respondent
contended, essentially, that the appellant and the fourth respondent
could not,
effectively, set aside the fourth respondent’s
dismissal without the court’s sanction, or a ruling by the
SALGBC. According
to this argument, what the appellant and fourth
respondent did in order to try and secure the fourth respondent’s
re-appointment
as municipal manager at the appellant, was tantamount
to an abandonment (albeit purported) of the judgment of Lallie J,
which had
the effect of reviving the fourth respondent’s
dismissal by the appellant (i.e. following the disciplinary hearing
chaired
by retired Judge Combrinck) and of the findings and sanction
of Judge Combrinck. According to this argument, as the judgment of
Lallie J was one
in rem
, and as the appellant was bound by
those findings and sanction, that was not legally permissible. The
re-employment of the fourth
respondent was also in breach of the ban
contemplated in the Appointment Regulations.
[53]
In support of this argument counsel for the first respondent had
relied in the court a quo on the decisions
of the Labour Court in
Saldana
Bay Municipality v SA Municipal Workers Union on behalf of Wilschut &
others, (“Saldana”),
[21]
and of this Court in
Hendricks
v Overstrand Municipality & another (“Overstrand”),
[22]
and submitted that those decisions supported the principle that
municipalities were constrained to approach courts in respect of
disputes relating to the dismissal of municipal officials.
[54] The court a quo held that
the judgments in
Saldana
and
Overstrand
were not
authority for the point advanced on behalf of the first respondent;
that even though a judgment of the Labour Court in
an ordinary
dismissal dispute is not a judgment
in rem,
the position was
different in the case of the dismissal of a municipal manager. The
court a quo reasoned that there was a difference
between the
dismissal of a private-sector employee and a public-sector employee,
such as a municipal manager. The latter had important
statutory
obligations and occupied an important position in the municipality.
Not only was such an official’s dismissal recorded
in a
register kept by the National Department of Cooperative Government
and Traditional Affairs, but, moreover, if he was dismissed
for
specified misconduct, he could not be re-employed as a senior manager
by any municipality for a specified period
.
[55]
According to the court a quo, the dismissal of a municipal manager
was “akin to the expulsion
of a member from a profession”,
which was considered to be an example of a judgment
in
rem
in
Tshabalala
v Johannesburg City Council.
[23]
[56] In response to an argument
made on behalf of the appellant in the court a quo, namely, that the
court’s
involvement in the case of the dismissal could not be a
requirement, because it would mean that parties to a dismissal
dispute
could never settle such a dispute before a Bargaining Council
even if the employer had been advised that it had no prospect of
success - the court a quo, in effect, held that that would indeed be
the case where the judgment was one
in rem
, such as where it
pertained to the dismissal of a municipal manager.
[57] The court a quo concluded
on that point: “… The review judgment was a judgment
in
rem
and accordingly [the appellant] and the fourth respondent
were not competent to enter into a settlement agreement in terms
whereof
[the appellant] abandoned the judgment. As a matter of law,
the parties were required to approach the court and request it to
approve
the settlement agreement… Accordingly the settlement
agreement falls to be set aside.”
[58] In addition, the court a
quo found that it was not competent for the appellant to appoint the
fourth
respondent because it was a condition of the appointment,
according to the resolution of the appellant of 18 February 2019,
that
a settlement of the dismissal dispute be concluded and that the
condition had not been fulfilled.
[59] In this Court, it was
submitted on behalf of the appellant that the court a quo had erred
in concluding
that the judgment of Lallie J was a judgment
in rem
,
because the judgment was, firstly, wholly unconcerned with the
fairness or validity of the fourth respondent’s dismissal
and
only dealt with the validity of the arbitration award and that “by
conflating the municipality’s dismissal decision
with an
arbitration award” the court a quo had “injected an
unwarranted requirement for the settlement of the dismissal
dispute
involving a municipal manager”; and, secondly, the court a quo
sought to “elevate the dismissal decision itself
so as to
remove it from the types of dispute, or claim, the Council may settle
under section 109(2) of the Systems Act”,
whereas there was no
judgment pronouncing on the procedural and substantive fairness of
the fourth respondent’s dismissal.
[60] Section 109(2) of the
Systems Act reads: “a municipality may compromise or compound
any action,
claim all proceedings and may submit for arbitration any
matter other than a matter involving a decision on its status,
powers,
or duties, or the validity of its actions or by-laws.”
[61] According to the
appellant’s argument, the mere fact that in terms of regulation
18 (7) of the
Appointment Regulations municipalities were required to
submit a record of staff members dismissed for misconduct to the
first
respondent and to the national Minister, did not change the
judgment of Lallie J into one
in rem
. Thus, according to this
argument, the legislative scheme which implemented the statutory ban
against re-employment (including
the keeping of a record) did not
require the court to sanction a settlement agreement.
[62]
In addition, the appellant, referring to a decision of the
Labour Court
[24]
and of this Court
[25]
,
where it was effectively held that a decision concerning the fairness
of a dismissal was a judgment
in
personam
,
submitted that neither the status of a municipal manager in local
government legislation, nor the fact that the dismissal of such
an
official is recorded, provides a sound basis “to elevate the
decision of Lallie J to a judgment
in
rem”
.
[63]
On behalf of the first respondent, it was essentially argued that the
fourth respondent’s dismissal
could not be abandoned, or
effectively set aside, without the sanction of the court and/ or that
of the SALGBC, and that, the dismissal
stood.
[26]
[64] The argument on behalf of
the sixth respondent was essentially in support of the thrust of the
first
respondent’s argument on the issue, namely, that there
was an effective ban in place on the re-employment of the fourth
respondent,
and that the appellant and the fourth respondent could
not, without the intervention of the courts (or at least the SALGBC),
set
aside the dismissal and neutralise the ban.
[65] Whereas the first
respondent relied mainly on Regulation 18(1) of the Appointment
Regulations, the
sixth respondent relied on the ban contemplated in
section 57A(3) of the Systems Act, which provided in essence that a
staff member
dismissed for financial misconduct as defined in section
171 of the MFMA, or for corruption or fraud, could not be re-employed
by a municipality for a period of 10 years.
[66] The sixth respondent also
addressed the issue of waiver that had been raised by the appellant.
The
appellant’s argument on that point was basically that by
entering into the settlement agreement with the fourth respondent
it
had effectively waived the dismissal of the fourth respondent and the
ban on his re-employment. The sixth respondent submitted
that this
argument was fallacious as it ignored the purpose and object of the
ban contained in section 57A(3), which was to deprive
the relevant
parties, i.e. the municipality and the dismissed employee, of the
discretion to waive the dismissal for financial
misconduct. It
further submitted that such a “contrivance” was not
permissible in terms of section 57(A)(3), as its
object would be
effectively negated if such waiver was permitted.
Discussion
[67] In the light of the
submissions made on appeal, it is necessary to commence the synthesis
with a consideration
of the nature of a judgment (or ruling)
in
rem
. This will then be followed by a consideration of the
arguments of the appellant and the first respondent concerning the
nature
of the judgment of Lallie J, the implications of Regulation 18
of the Appointment Regulations, the implications of the Disciplinary
Regulations, including their validity and applicability. Thereafter,
the submissions of the sixth respondent concerning the applicability
and validity of section 57A(3) in light of the decision in
SAMWU
,
and the issue of waiver shall be evaluated.
In rem
[68]
In
Airports
Company South Africa v Big Five Duty Free (Pty) Limited and
Others
[27]
the Constitutional Court described a judgment
in
rem
as one that “determines the object of status of a person or
thing… [It] has a public character that transcends the
interests of only the litigating parties….”
[28]
The Constitutional Court also pointed out that “our law already
recognizes that judgments
in
rem
are not subject to mere settlement…”
[29]
It referred with approval, inter alia, to what the Supreme Court of
Appeal found, in the context of intellectual property law,
in the
Marine
Technologies
case, namely, that the judgment appealed against in that matter was
one
in
rem
“in that it [affected] a public register” and that
notwithstanding the settlement in the matter, Marine was constrained
to proceed with the appeal.
[30]
[69]
Regulation 18 of the Appointment Regulations envisages a ban on the
re-employment by a municipality,
within a specified period, of a
person who was dismissed as a senior manager (including municipal
manager) for specified kinds
of misconduct.
[31]
Municipalities are obliged to keep records of such employees
[32]
and to submit those records to the relevant MEC responsible for local
government and to the national Minister responsible for local
government.
[33]
The dismissal by a municipality of such persons for the kinds of
misconduct specified in those regulations and the litigation between
them in that regard, by virtue of those regulations, transcends the
interests of those parties and even binds other South African
municipalities that were not party to the litigation.
[70] Consequently, it is not
far-fetched or specious to regard judgments, rulings or findings
pertaining
to such dismissals as being
in rem
, and as not
being susceptible to mere settlement by the litigating parties
without the intervention of the court, or the CCMA or
bargaining
council. Such dismissals are the exception to the general rule,
namely, that ordinarily orders in respect of dismissals
are
in
personam,
in that they only apply to the litigating parties and
do not transcend the interests of those parties.
[71]
It is also significant that the Disciplinary Regulations oblige a
municipal council (“municipality”),
intending to
discipline a municipal manager, to first appoint an independent
investigator to investigate the charges of misconduct,
[34]
and obliges the municipality to, by way of resolution, institute
disciplinary proceedings against that person if, according to
the
investigator’s report, there is evidence to support the
charge(s) of misconduct.
[35]
[72]
The municipality is also obliged (in such resolution) to appoint an
independent, external presiding
officer, who must conduct the hearing
and who may determine the hearing procedure.
[36]
If the municipality does appoint such a presiding officer it is bound
by his, or her, decision
[37]
and must implement the sanction imposed by the presiding officer
[38]
and report the outcome to the MEC responsible for local government in
the relevant province.
[39]
If the municipal manager is found guilty of financial misconduct, the
municipality must also report the outcome of the disciplinary
hearing
to the MEC responsible for finance in the relevant province and to
the Auditor-General.
[40]
[73]
In respect of pre-dismissal arbitrations involving the municipal
manager, regulation 11 of the Disciplinary
Regulations allows the
municipal council, instead of appointing an external, independent
presiding officer, to request the CCMA
to conduct an arbitration into
allegations of misconduct (i.e. as contemplated in section 188A of
the Labour Relations Act
[41]
).
However, even in that instance, and of major significance to the
issue under consideration here, the regulation provides that
the
decision of the CCMA arbitrator shall be final and binding “and
only be subject to review by the Labour Court.”
[42]
Power to settle
[74] In light of those
regulations section 109(2) of the Systems Act, which empowers
municipalities to enter
into settlements, cannot be interpreted in
isolation, without taking into account the objects and purposes of
the regulations which
have been referred to above. Unless that is so,
the very (laudable) objects of those regulations could easily be
undermined and
even be effectively negated.
[75] The regulations do not
deprive municipalities of their power to compromise or compound any
action,
claim or proceeding involving the dismissal of its employees,
but obliges the municipality in the case, at least, of the dismissal
and re-appointment of a senior officer, such as municipal manager, to
have recourse to the courts, or the CCMA (or, clearly, the
relevant
bargaining council). That is in order to ensure that the objectives
of those regulations are not undermined or negated.
[76] It is uncontested that the
fourth respondent was a municipal manager at the time of his
dismissal,
and what is also clear is that the Disciplinary
Regulations applied to his discipline for misconduct. The appellant
opted, as it
was empowered to in terms of the Disciplinary
Regulations, to appoint an external, independent presiding officer,
Judge Combrinck,
and it was bound by his decision that the fourth
respondent was guilty of misconduct, and by the sanction of dismissal
imposed
by him. If the municipality and the fourth respondent could
undo all of this on their own by virtue of a mere settlement, they
could effectively undermine or negate the regulations (and the other
applicable legal provisions, which are considered below).
[77] The appellant and fourth
respondent were constrained to approach the court, or the SALGBC, if
they
wished to set aside the decision of Judge Combrinck.
[78] The judgment of Lallie J is
in rem
as it relates to the dismissal of a municipal manager,
to whom the appointment and disciplinary regulations applied. It
ordered
the setting aside of the SALGBC’s award, in terms of
which it was found that the fourth respondent had been unfairly
dismissed,
and it restored the status quo as at the time of the
fourth respondent’s dismissal by the appellant (i.e. acting
upon Judge
Combrinck’s findings and sanction). The SALGBC
process was to begin afresh. The judgment thus also affected the
fourth respondent’s
employment status.
[79] Even though the fourth
respondent filed an application for leave to appeal against the order
or judgment
of Lallie J, that process was never further prosecuted,
and consequently lapsed (long before the purported settlement).
[80]
At the time of the settlement and re-employment of the fourth
respondent by the appellant, the order
of Lallie J was still
effective, and the dismissal of the fourth respondent by Judge
Combrinck, which the appellant was obliged
to accept and implement,
still stood.
[43]
And, as stated above, none of that could be undone by a mere
settlement entered into between the appellant and fourth respondent.
They could not, as it were, resort to “self-help”. They
were constrained by law to approach the court or, at least
the
SALGBC.
[44]
[81] It is also significant that
even though the appellant and the fourth respondent agreed in terms
of
their settlement that the dismissal of the fourth respondent
was unfair, the appellant did not (and could not without the
intervention of an adjudicative body, such as the court or the
SALGBC) set aside the dismissal, but, instead, (albeit purportedly)
entered into a new employment agreement with the fourth respondent on
21 February 2019 in respect of the same position that the
fourth
respondent was previously dismissed from.
[82] Since the dismissal stood
as aforesaid, and with it, the prohibition contemplated in the
regulations,
the settlement and purported re-appointment of the
fourth respondent was unlawful and invalid and was properly set aside
by the
court a quo.
Validity of the Regulations
[83]
There was some argument about whether the regulations were valid and
effective at the time of the (purported)
settlement and re-employment
of the fourth respondent by the appellant. The argument was nothing
more than a diversion. They were
valid at all material times. The
Disciplinary Regulations were made by the responsible Minister on 21
April 2011, before the Amendment
Act was assented to
[45]
,
in terms of section 120 of the Systems Act and the Appointment
Regulations were made by the responsible Minister in terms of section
120, read with section 72 of the Systems Act. The Appointment
Regulations do not (expressly) refer to sections 54A, 56A or 57A
and
other provisions of the Systems Act, and although it deals in
Regulation 18 and Schedule 2 with matters, which in terms section
57A
of the Systems Act, require prescription by regulation, the bulk of
its provisions pertain to other aspects of the employment
of senior
managers which are not envisaged in section 57A, or in section 54A,
of the Systems Act. Further, none of the Regulations
were mentioned
in
SAMWU
as having been affected by the declaration of invalidity of the
Amendment Act.
Financial Misconduct
[84]
There was also argument about whether Judge Combrinck had found the
fourth respondent guilty of “financial
misconduct,” as
contemplated in Schedule 2 of the Appointment regulations
[46]
.
It is to this issue that we now turn, because it is relevant to the
period of the ban on fourth respondent’s re-employment
by a
municipality.
[85] “[F]inancial
misconduct” is but one of the categories of misconduct to which
the ban contemplated
in Regulation 18 (1) of the Appointment
Regulations applies. Together with misconduct of corruption and
fraud, it is the most serious
category. It carries a ban of 10 years.
Another category of misconduct which is mentioned in that regulation,
is misconduct involving
elements of dishonesty and negligence which
carries a ban of five years. There are also other categories of
misconduct in respect
of which shorter periods of prohibition apply.
The shortest period being two years.
[86]
The first category is described more fully as – financial
misconduct contemplated in section
171 of the Municipal Finance
Management Act
[47]
(”MFMA”), corruption and fraud. Section 171 of the MFMA
deals with financial misconduct by municipal officials. Section
171(1) provides that an accounting officer of a municipality commits
an act of financial misconduct if that accounting officer
deliberately or negligently – (a) contravenes a provision of
the MFMA; (b) fails, as accounting officer, to comply with a
duty
imposed on him (or her) by the MFMA; (c) makes or permits, or
instructs another official of the municipality to make an
unauthorised,
irregular, or fruitless and wasteful expenditure, or;
(d) provides incorrect or misleading information in any document,
which in
terms of the MFMA must: (i) be submitted to the mayor or
council of the municipality, or to the Auditor-General, the National
Treasury
or other organ of state; or (ii) must be made public.
[87] In Regulation 1 of the
Disciplinary Regulations “financial misconduct” is
defined as any
misappropriation, mismanagement, waste or theft of
finances of a municipality and also includes any form of financial
misconduct
contemplated in section 171 of the MFMA.
[88] The main emphasis of the
appellant’s argument, to the effect that the fourth respondent
was not
found guilty of “financial misconduct”, was that
the actual term does not appear in the charges of misconduct or in
the findings of Judge Combrinck. However, that seems to be a
misconception, because, while an express statement to that effect
may
have been helpful, its absence does not mean that the fourth
respondent was not found to have committed “financial
misconduct”.
One must not be misled by the absence of the use
of that very term, but ought to consider objectively the nature of
the misconduct
the fourth respondent was found to have committed,
which is apparent from the charges, the evidence and the findings of
the presiding
officer.
[89] The fourth respondent was
charged with, inter alia, transgressing Regulation 61 (1) in terms of
which
an accounting officer of a municipality is obliged to act with
fidelity, honesty, integrity and in the best interest of the
municipality
in managing its affairs and seek, within the sphere of
his influence as accounting officer, to prevent any prejudice to the
financial
interests of the municipality.
[90] The charges clearly concern
financial misconduct. The fourth respondent’s alleged
misconduct
related to the purchase of a certain property by the
appellant, in which he was involved. He was found to have known of
far lesser
valuations of that property than the price which he was
prepared to pay for it (i.e. he was prepared to pay much more for the
property
than what it was valued at). Judge Combrinck, inter alia,
found in that regard that the fourth respondent did not act with
fidelity,
honesty and integrity and had mismanaged the funds made
available for the purchase of the property. Such conduct clearly
falls
within the definition of “financial misconduct”
which, in terms of the Appointment Regulations, attracted a
re-employment
ban of 10 years, which would only expire in February
2022.
Breach of the ban on re-employment
[91] The appointment of the
fourth respondent was thus also in breach of the ban in the
Appointment Regulations,
and the order of the court a quo setting
aside his appointment was also justifiable for that reason.
[92] As pointed out earlier, the
ban against re-employment contained in section 57A (3) of the Systems
Act
is very similar to that contemplated in Regulation 18(1) of the
Appointment Regulations. The financial misconduct contemplated in
that section is also the same as that contemplated in the said
regulation.
[93] Arguably, Regulation 18(1)
was promulgated by the Minister in fulfilment of the injunction in
section
57A(2), which required the Minister to prescribe different
periods of expiry, as contemplated in subsection (1), and which, in
turn, provided that any staff member dismissed for misconduct may
only be re-employed by a municipality after the expiry of a
prescribed
period. But section 57A(3) is not dependent on Regulation
18. It is self-standing. The section provides: “notwithstanding
subsections (1) and (2), a staff member dismissed for financial
misconduct contemplated in section 171 of the [MFMA], corruption
or
fraud may not be re-employed in any municipality for a period of 10
years.”
[94] As with Regulation 18(1),
the language of section 57A(3) is absolute and unqualified – if
a staff
member contemplated in that section is dismissed for the
reasons contemplated there, the ban is automatically triggered. The
ban
in this matter was triggered when the appellant was dismissed by
the fourth respondent for conduct that objectively meets the
definitional
criteria of “financial misconduct”.
[95] If section 57A(3) of the
Systems Act was valid and applicable at the time of the (purported)
settlement
and re-employment of the fourth respondent then they were
also invalid for being in breach of the ban contemplated in that
section.
[96] As mentioned when dealing
with the issue of standing of the first respondent, even though
section 57A(3)
of the Systems Act was part of the suit of provisions
affected by the declaration of invalidity of the Amendment Act in
SAMWU
, its invalidity was effectively suspended for a period
of 24 months that was to expire on 9 March 2019. Section 57A(3) was
thus
valid and applicable at the time of the resolution of the
appellant on 18 February 2019 authorising the settlement and
re-employment
of the fourth respondent, and the (purported)
conclusion of the settlement agreement and re-employment of the
fourth respondent
on 21 February 2019. The formal employment
agreement, even though signed on 25 March 2019, being based on
invalidity and illegality,
was thus also invalid.
Appellant’s alternative argument regarding the
ban
[97] In the alternative, and on
the supposition that the section and/or the Appointment Regulations
were
found to have been valid and applicable at the material times,
the appellant relied on Regulation 18(2) of the Admission
Regulations,
arguing, in essence, that the ban was not applicable to
a senior manager who had “lodged a dispute in terms of the
applicable
legislation”.
[98] Not only is the appellant’s
reliance on Regulation 18(2) misplaced, but it is also based on a
misinterpretation of that regulation. Regulation 18(2) cannot be
construed out of context and without reference to the other
(relevant)
Appointment and Disciplinary Regulations. Properly
construed, it does not mean that a senior manager, to whom the ban
would otherwise
apply, can, as it were, neutralise it, by merely
lodging a dispute, irrespective of its merits, and doing nothing
further to have
it finally resolved. That would negate the object and
purpose of the ban. It is certainly required of such a person to do
everything
possible to further prosecute that process to its finality
and in his or her favour.
[99] In this instance, it is
clear that this never happened. The fourth respondent deliberately
chose not
to follow the process envisaged in the order of Lallie J
and, either deliberately, or through gross neglect, failed to
prosecute
the application for leave to appeal that order to finality.
Instead, he effectively and unequivocally, abandoned that process,
which (in any event), had also lapsed by the effluxion of time.
Together with the appellant, the fourth respondent purported to
overcome the ban by means of the settlement, but they did not (and
could not on their own) set aside the dismissal, which stood.
[100] Lastly, the appellant did not have the
power to waive the dismissal. Its power in that regard, like its
power
to settle, as contemplated in terms of section 109(2) of the
Systems Act, is subject to the legislative provisions referred to
above, that effectively constrain it to seek the intervention of the
court, or more appropriately in this matter, the SALGBC, where
the
dismissal dispute was to be dealt with afresh, according to the
judgment of Lallie J.
Cross-Appeal
[101] Turning to the first respondent’s
cross-appeal, essentially, two issues were raised there, namely, the
striking
out of irrelevant matter from the answering affidavit filed
by the appellant in the court a quo, and in respect of which no order
was made, and secondly, the cost award made by that court, and
particularly in terms of which it did not hold the third and fourth
respondents personally, jointly liable with the appellant.
[102] In respect of the first issue, the
argument on behalf of the first respondent was essentially that the
court a
quo erred in refusing to strike out paragraphs from the
appellant’s answering affidavit dealing with the merits of the
fourth
respondent’s dismissal and in terms of which the
appellant appeared to rationalise the settlement agreement. According
to
the first respondent’s argument those averments were
irrelevant, because the fourth respondent’s re-employment could
not be lawfully effected through a settlement agreement which was not
authorised by the court and the settlement was
per se
invalid.
[103]
The application to strike out matter seems to me to have been
misconceived. I am not convinced that the court
erred in refusing
that application. The court a quo had a discretion in that regard and
was not obliged in terms of the applicable
rules to strike out the
matter.
[48]
In any event, the irrelevance of the matter was not established.
“Irrelevant matter” are averments, or allegations
that do not apply to the matter at hand and do not contribute in one
way or the other to a decision of the matter at hand.
[49]
[104] In dealing with the merits of the
application of the first respondent, the court a quo was not
distracted and
focussed on the real issues, namely, those pertaining
to the legality of the fourth respondent’s re-employment by the
appellant.
It concluded that the fourth respondent’s dismissal
could not be undone by the appellant and fourth respondent in a mere
settlement and employment agreement without judicial intervention.
[105] In respect of the second issue, unless
it is shown that the court a quo erred in the exercise of its
discretion
in making the costs order, this point is effectively
stillborn. It is trite that a court has a wide discretion with regard
to the
award of costs. The court a quo did indeed consider the first
respondent’s submissions regarding costs, including the request
that the third and fourth respondent’s be held personally
liable for the costs, jointly with the appellant. It is mentioned
in
the judgment that “the prayer was moderated to only the third
respondent”, referring to the Executive Mayor of the
appellant
and apparently alluding to the fact that the personal costs order was
no longer being sought against the fourth respondent
and was only
directed at the Executive Mayor, i.e. the third respondent in that
court (and in this court). In any event, the court
a quo adequately
motivated why such a cost order was inappropriate.
[106] Besides the fact that it had not been
shown that the court a quo had exercised its discretion wrongly, the
first
respondent’s counsel, in his argument in reply,
seemingly, abandoned this aspect of the cross-appeal. He indicated
that the
first respondent was no longer seeking a personal costs
order against the fourth respondent. Consequently, the cross-appeal
cannot
succeed.
Costs
and other relief
[107] Taking into account all the relevant
facts and circumstances, including the fact that argument on the
cross-appeal
occupied this Court very briefly and took up a small
part of the record, a separate cost order in respect of the
cross-appeal is
not proposed.
[108] In the result, it is ordered that:
1. The
appeal is dismissed.
2. The
appellant is to pay the costs on appeal of the first and sixth
respondents, which
shall include the costs of two counsel and senior
counsel, where the same have been employed; and
3. The
cross-appeal is dismissed.
_________________
P Coppin
Judge of the Labour Appeal Court
Davis JA and Kathree-Setiloane AJA concur in the
judgment of Coppin JA.
APPEARANCES
FOR THE APPELLANT:
A De Vos SC and L Ferreira
Instructed by HDRS Attorneys c/o Macgregor Erasmus
Attorneys
FOR THE FIRST RESPONDENT:
C Kahanovitz SC and J Williams
Instructed by The State Attorney, Cape Town
FOR THE FOURTH RESPONDENT:
Dr AD De Swardt and Adv. JP Snijders
Instructed by BMH Attorneys Inc. c/o Macgregor Erasmus
Attorneys
FOR THE SIXTH RESPONDENT:
MSM Brassey SC
Instructed
by MA Hurwitz Attorneys c/o E Rowan Inc.
[1]
Act 32 of 2000.
[2]
Regulations on the Appointment and Conditions of Employment of
Senior Managers - (GN 21 published in GG 37245, 17 January 2014)
(“Appointment Regulations”)
[3]
Act 13 of 2005.
[4]
See, inter alia,
Merafong
City Local Municipality v SA Municipal Workers Union & another
(2016) 37 ILJ 1857 (LAC) (“
Merafong
City (LAC)
”)
[5]
See, inter alia, section 54A(2A)(b) and section 54A(7).
[6]
Section 54A(7)(c).
[7]
See:
Merafong
City
(LAC).
[8]
2017 (5) BCLR 641
(CC) (9 March 2017) (“
SAMWU
”).
[9]
Act 7 of 2011.
[10]
Ibid paras 85 and 86.
[11]
Ibid para 86.
[12]
See S 172(1)(b)(i) and (ii) of the Constitution (1996);
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and others (MEC for Local Government and Traditional
Affairs–Kwazulu –Natal and others intervening: SA
Property Owners Association and Another as amici curiae)
2010
(9) BCLR 859
(CC) paras 73 and 85;
Cross-Border
Transport Agency v Central African Road
Services
(Pty) Ltd and Another (Road Freight Association as amicus curiae)
2015 (7) BCLR 761
(CC) paras 21-22.
[13]
See
SAMWU
(above) para 85;
S
v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 43;
Minister
of Police v Kunjana
2016 (2) SACR 473
(CC) para 35.
[14]
See
SAMWU
(above) para 86.
[15]
Local Government: Disciplinary Regulations for Senior Managers
(2010) GN 344, GG 34213, 21 April 2011 (“Disciplinary
Regulations”).
[16]
Merafong
City (LAC)
(see
above).
[17]
1996
(1) BCLR 1
(CC);
1996 (1) SA 984
(CC) para 163.
[18]
1998 (4) SA 908 (Tk).
[19]
See at para 229.
[20]
2008
(6) SA 345
(C) para 17.
[21]
(2016)
37 ILJ 1003 (LC).
[22]
(2015)
36 ILJ 163 (LAC).
[23]
1962
(4) SA 367
(T) at 308H-309A.
[24]
Maartens
& others v SA National Parks
(2004) 25 ILJ 2222 (LC)
[25]
Imperial
Cargo (Pty) Ltd v SA Transport Allied Workers Union
(JA79/2013)
[2015] ZALAC 81
(5 March 2015)
[26]
Reference was made to, inter alia, by the SCA in
Pepcor
Retirement Fund v Financial services Board
2003
(6) SA 38
(SCA) para 10; and in
Ntshangase
v MEC: Finance, KwaZulu Natal & Another
[2009] 12 BLLR 1170
(SCA) paras 13 and 17; and by the Constitutional
court in
Merafong
City v Anglogold Ashanti
Ltd
2017 (2) SA 211
(CC) paras 41-42 (“
Anglogold
”).
[27]
2019
(5) SA 1
(CC) paras 2-3.
[28]
Para
2.
[29]
Para
3.
[30]
Para 3.
[31]
Reg. 18(1) read with Reg.18(4) and Schedule 2 of the Appointment
Regulations.
[32]
Reg. 18(6).
[33]
Reg. 18(7).
[34]
Reg.3(4) read with Reg. 5 of the Disciplinary Regulations.
[35]
Reg.5.
[36]
Reg.5.
[37]
Reg. 12(3).
[38]
Reg. 12(3).
[39]
Reg. 19(1) read with Reg. 12(3)(b).
[40]
Reg. 12(3)(c).
[41]
Act 66 of 1995.
[42]
Reg. 11(2).
[43]
Compare, inter alia,
Anglogold
(above) paras 41-42.
[44]
Ibid.
[45]
The Amendment Act (Act 7 of 2011) was assented to on 2 July 2011 and
commenced on 5 July 2011.
[46]
In Schedule 2 Column 3 specifies the period of the prohibition, and
column 2 specifies the category of misconduct.
[47]
Act 56 of 2003.
[48]
See: inter alia,
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
1974
(4) SA 362
(T) at 368G.
[49]
See, inter alia,
Steyn
v Schabort
En
Andere NNO
1979 (1) SA 694
(O) at 698A.