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[2024] ZALCJHB 106
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South African Municipal Workers Union v Letsimeng Local Municipality and Another (J 75/2024) [2024] ZALCJHB 106 (5 March 2024)
THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
Not Reportable
Case no: J 75/2024
In the matter between:
SOUTH AFRICAN
MUNICIPAL WORKERS UNION
Applicant
And
LETSIMENG LOCAL
MUNICIPALITY
First Respondent
TEBOHO ABEL MAINE
Second
Respondent
Heard:
20 February 2024
Delivered:
5 March 2024
This
judgment was handed down electronically by consent of the parties’
representatives by circulation to them by email. The
date for
hand-down is deemed to be 5 March 2024.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The
First Respondent (Municipality) is a municipality established in
terms of the relevant provisions of the Local Government: Municipal
Systems Act
[1]
and is situated
in the southwestern Free State. The position of municipal manager has
been vacant for some time and on 24 February
2023, the Municipal
Council (Council) appointed a selection panel, consisting of the
Mayor, councillor Nthapo, Ms Khuzwayo from
SALGA Free State and Mr
Khiba from COGTA Free State. The position of municipal manager was
subsequently advertised and whereafter
shortlisting was done and
interviews were held. The Second Respondent (Mr Maine) was appointed
after the Council had resolved on
10 January 2024 to appoint him as
the municipal manager.
[2]
On 18 January 2024, the Applicant became
aware of the appointment of Mr Maine with effect from 1 February
2024. The Applicant approached
this Court on 26 January 2024, on an
urgent basis, seeking a rule
nisi
to
inter alia
interdict
the Municipality from giving effect to the decision of 10 January
2024 to appoint Mr Maine, pending the finalisation of
a review
application to be instituted. The matter was enrolled for hearing on
2 February 2024, but on the said date, it was postponed
until 20
February 2024.
[3]
The Respondents opposed the application and
took issue with urgency. I have considered the question of urgency
and I am inclined
to deal with this matter on an urgent basis.
The urgent application
[4]
In
its founding affidavit, the Applicant has set out the legal framework
that applies to the appointment of a municipal manager.
The
Applicant’s case is that the appointment of Mr Maine is
unlawful for want of compliance with the Local Government:
Regulations
on Appointment and Conditions of Employment of Senior
Managers
[2]
(Regulations).
According to the Applicant, there were material deficiencies in the
process followed leading up to the Council resolution
of 10 January
2024 and the Regulations were flouted.
[5]
The Applicant seeks to interdict the
Respondents from acting upon the Municipality’s decision to
appoint Mr Maine as the municipal
manager, pending the finalisation
of a review application to set aside the aforesaid decision.
The relief sought and
the applicable legal principles
[6]
The Applicant seeks to interdict the
Municipality from giving effect to the decision of 10 January 2024 to
appoint Mr Maine, pending
the finalisation of a review application to
be instituted. Furthermore, it seeks to interdict Mr Maine from
performing any acts
and duties, and attending to any function related
to the position of municipal manager or from holding himself out to
be the municipal
manager.
[7]
The
requirements for interim relief were set out more than 100 years ago
in
Setlogelo
v Setlogelo
[3]
.
They are:
1.
a
prima
facie
right;
2.
a well-grounded apprehension of
irreparable harm if interim relief is not granted and the ultimate
relief is eventually granted;
3.
the balance of convenience in favour
of the granting of the interim relief; and
4.
the absence of any other adequate
ordinary remedy.
[8]
The
well-known authority in relation to the application of this test is
Webster
v Mitchell
[4]
.
The headnote reads as follows:
‘
In
an application for a temporary interdict, applicant’s right
need not be shown by a balance of probabilities; it is sufficient
if
such right is
prima facie
established, though open to some doubt. The proper manner of approach
is to take the facts as set out by the applicant together
with any
facts set out by the respondent which applicant cannot dispute and to
consider whether, having regard to the inherent
probabilities, the
applicant could on those facts obtain final relief at a trial. The
facts set up … in contradiction by
respondent should then be
considered, and if serious doubt is thrown upon the case of applicant
he could not succeed.
In considering the harm
involved in the grant or refusal of a temporary interdict, where a
clear right to relief is not shown, the
Court acts on the balance of
convenience. If, though there is prejudice to the respondent, that
prejudice is less than that of
the applicant, the interdict will be
granted, subject, if possible, to conditions which will protect the
respondent.’
[9]
In
order to establish a
prima
facie
right, an applicant must provide
prima
facie
proof of facts that establish the existence of a right in terms of
the substantive law. An applicant must also establish a well-grounded
apprehension of irreparable harm if interim relief is not granted and
it ultimately succeeds in establishing its right. The
balance-of-convenience
requirement, as well as its interrelationship
with the requirement of a
prima
facie
right, was explained in
Olympic
Passenger Service (Pty) Ltd v Ramlagan
[5]
:
‘
The
expression “prima facie established though open to some doubt”
seems to me a brilliantly apt classification of these
cases. In such
cases, upon proof of a well grounded apprehension of irreparable
harm, and there being no adequate ordinary remedy,
the court may
grant an interdict – it has a discretion, to be exercised
judicially upon a consideration of all the facts.
Usually this will
resolve itself into a nice consideration of the prospects of success
and the balance of convenience – the
stronger the prospects of
success, the less need for such balance to favour the applicant: the
weaker the prospects of success,
the greater the need for the balance
of convenience to favour him. I need hardly add that by balance of
convenience is meant the
prejudice to the applicant if the interdict
be refused, weighed against the prejudice to the respondent if it be
granted.’
[10]
As the Applicant seeks an interim
interdict, it has to satisfy all the requirements for an interim
interdict, which I will deal
with
infra.
This Court has to decide whether the
Applicant has made out a case,
prima
facie,
which would entitle it to the
relief it seeks.
[11]
It
is trite that an applicant must make out its case in the founding
affidavit. In
Bowman
NO v De Souza Roldao
[6]
,
it
was held that:
‘
Generally
speaking, an applicant must stand or fall by his founding affidavit;
he is not allowed to make out his case or rely upon
new grounds in
the replying affidavit.’
[12]
It is within this context that this
application is to be decided.
Requirements for an
interim interdict
Prima facie right
[13]
The
applicant for an interim interdict must show a right which is being
infringed on or which he or she apprehends will be infringed.
The
right may arise out of contract, delict or it may be founded in the
common law or on some statute; it may be a real or personal
right.
The right set out by an applicant for interim relief need not be
shown by a balance of probabilities. Where the interim
relief is
sought
pendente
lite,
the
applicant is required to furnish proof which, if uncontradicted and
believed at the trial, would establish his or her right.
[7]
[14]
The Applicant submitted that the
appointment of Mr Maine was
prima facie
unlawful because there were material
deficiencies in the process followed, leading up to the Council
resolution, the Regulations
were flouted and therefore his
appointment is void and needs to be declared void, alternatively is
reviewable and must be declared
unlawful and set aside.
[15]
The Applicant made specific reference to
certain parts of the Regulations to support its case that there was
no compliance with
the Regulations, which renders Mr Maine’s
appointment unlawful.
[16]
According to the Applicant, the first
irregularity is to be found in Regulation 10, which prescribes that
once the Council has approved
the filling of a vacant post, the post
must be advertised within 14 days of receipt of the approval. The
mayor must provide monthly
reports to the executive committee
regarding the progress on the filling of the vacant municipal manager
post.
[17]
It is common cause that the Council
approved the appointment of the selection panel for the vacant
municipal manager position on
24 February 2023.
[18]
The Applicant’s case is that the
advertisement for the post of municipal manager was only published in
the Sowetan newspaper
on 14 March 2023, which was 21 days after the
appointment of the selection panel, which constitutes an
irregularity.
[19]
The aforesaid irregularity is disputed by
the Respondents. Their version is that the vacant position of
municipal manager was advertised
in the City Press newspaper on 15
January 2023, with a closing date of 2 February 2023. Neither of the
parties has informed this
Court about the date when the filling of
the vacant municipal manager post was approved, which is the relevant
date for purposes
of compliance with Regulation 10(1).
[20]
It is evident from the Council resolution
of 24 February 2023 that the Council approved the appointment of the
selection panel for
the municipal manager position. The approved
selection panel was authorised to conduct the entire recruitment
process including
shortlisting, selection, interviews and
recommendation of the suitable candidate to the Council.
[21]
The Respondents referred to the ‘extract
of a special continuation council meeting held on 6 March 2023’
wherein it
was recorded that the purpose was for the Council to
deliberate on the re-advertisement of the position of municipal
manager. It
was recorded that the advertisement was placed in the
City Press on 15 January 2023, but the purpose of advertising was not
met
and on 6 March 2023, the Council approved the re-advertisement of
the said position and resolved that the selection panel, which
was
approved on 24 February 2023, remains the same. The position was
advertised in the Sowetan on 14 March 2023 and it was done
within the
time period allowed.
[22]
There is no evidence placed before this
Court to show that the mayor complied with Regulation 10(5) by
providing monthly reports
to the executive committee regarding the
progress on the filling of the vacant municipal manager post.
[23]
Regulation 13 provides that the mayor, in
consultation with the selection panel, must compile a list of all the
applicants who applied
for the advertised post, and must also compile
a shortlist consisting of all applications received, evaluated
against the relevant
competency requirements. The shortlisting must
be finalised within 30 days of the closing date of the advertisement.
[24]
The Applicant’s complaint is that
interviews were conducted when there “
was
no shortlisting of any candidate, and moreover, such a shortlisting
process was not finalised within 30 days of the closing
date of the
advertisement. Indeed, the advertisement had no closing date”.
[25]
The Respondents disputed the aforesaid
averments. A copy of the advertisement for municipal manager of 14
March 2023 was attached
to Mr Maine’s opposing affidavit. It is
evident from the advertisement that the closing date was 3 April
2023, wherefore
the Applicant’s averment that the advertisement
had no closing date is factually incorrect.
[26]
The Respondents attached the minutes of the
selection panel’s shortlisting meeting held on 25 April 2023 to
Mr Maine’s
opposing affidavit. It is evident from the minutes
that a total of 15 applications were received and a list was compiled
of those
and that seven candidates were shortlisted.
[27]
It appears from the minutes of the
selection panel that a shortlisting process indeed took place and
that the shortlisting was done
within 30 days of the closing date of
the advertisement. There is no merit in the Applicant’s
complaint that no shortlisting
was done or that it was not done
within 30 days of the closing date of the advertisement. The
Applicant’s complaint is factually
incorrect and not supported
by the evidence placed before this Court.
[28]
The selection panel recorded that in terms
of the Regulations, all the shortlisted candidates had to undergo a
screening process
and they requested COGTA’s assistance to
conduct the screening process. On 28 April 2023, the acting municipal
manager requested
the Free State COGTA to assist with the screening
of the shortlisted candidates as the Municipality does not have the
capacity
and the means to conduct the screening on its own.
[29]
Regulation 14 requires that the screening
be done within 21 days after the finalisation of the shortlisting. It
is evident from
the facts before this Court that the shortlisting was
done on 25 April 2023.
[30]
On the Applicant’s version, COGTA
submitted a report from its security and management and
anti-corruption directorate on 16
May 2023, in terms of which only Mr
Maine was evaluated. The Applicant accepts that this had happened
before the interviews took
place, but alleged that there was no
compilation of shortlisted candidates and the screening did not take
place within 21 days
of finalising the shortlisting.
[31]
The Respondent’s version is that
screening was requested for and conducted on all the shortlisted
candidates and that there
was substantial compliance with the
Regulations. There was no prejudice and it was not for the Council to
compel COGTA to conduct
the screening in a more expedited manner.
[32]
The Applicant insisted that Regulation 14
was disobeyed as screening did not take place within the prescribed
timeframe and the
mayor did not report on the outcome of the
screening process before the interviews took place. It is evident
from the Respondents’
version that COGTA’s response to
the screening pertaining to candidates who were dismissed for
misconduct or who had resigned
prior to the commencement or
finalisation of proceedings, was received on 22 June 2023. It is
common cause that the candidates
were interviewed on 1 June 2023. It
seems that the Applicant has merit in its complaint that there was
not compliance with Regulation
14.
[33]
Regulation 15 provides that the selection
panel must conduct the interviews of candidates within 21 days of
screening and that the
selection panel for a specific post must
remain the same throughout the screening and interviewing process.
[34]
The Applicant insists that there is no
compliance with Regulation 15 as it requires that the selection panel
must conduct the interviews
of candidates within 21 days of screening
and the interviews were held before the screening was done. In my
view, there is merit
in the Applicant’s complaint regarding the
non-compliance with Regulation 15 in this regard.
[35]
Regulation 15 also provides that the
selection panel for a specific post must remain the same throughout
the screening and interviewing
process.
[36]
The Applicant’s complaint is also
that not all the selection panel members attended the interview for
the vacant municipal
manager post. The Respondents admitted that Mr
Nthlapo, a DA councillor did not attend the interviews, but submitted
that there
was substantial compliance with the Regulations in that
the remainder of the selection panel still constituted a quorum in
terms
of the Regulations.
[37]
The Applicant disputed that there was
substantial compliance or that the Municipality was entitled to rely
upon the doctrine of
substantial compliance for purposes of showing
compliance with the requirements of the Regulations.
[38]
Regulation 12(3) provides that the
selection panel for the appointment of a municipal manager must
consist of at least three and
not more than five members, constituted
as follows:
a)
The
mayor;
b)
A councillor designated by the Council;
c)
At least one other person, who is not a
councillor or a staff member of the municipality and who has
expertise or experience in
the area of the post.
[39]
It will be for the review Court to decide
if there was compliance with the Regulations if the councillor,
designated by the Council,
did not attend the interview. In my view,
the absence of the councillor constitutes non-compliance, at least at
a
prima facie
level.
[40]
Regulation 16 provides that the candidates
recommended for appointment must undergo a competency assessment. The
Respondents’
version is that after the interviews were
conducted, the top four candidates were indeed assessed by COGTA’s
accredited service
provider, Gijima Technology People and Mr Maine
was found to be competent.
[41]
The Applicant’s case is that there is
no evidence that all the candidates recommended for appointment had
undergone a competency
assessment. The fact that Mr Maine says it was
done, without any supporting document or confirmatory affidavit, is
not sufficient
to accept that it was indeed done.
[42]
The Applicant further took issue with the
fact that the Council had resolved on 6 March 2023 that the vacant
municipal manager post
be filled within three months from the closing
date of the advert, which did not happen.
[43]
On 23 November 2023, the mayor addressed a
letter to COGTA’s MEC, regarding the appointment of the
municipal manager. In the
letter, it was recorded that the
appointment of the municipal manager was not concluded within a
period of 90 days and that the
report was not presented to the
Council, due to a number of instabilities within the Municipality.
The MEC was approached to advise
the Municipality on the appointment
of a municipal manager. The MEC responded to the mayor and the
speaker on 4 January 2024.
[44]
The Municipality was advised that the
appointment of a municipal manager vests in the Council and that it
is only after the Council
has resolved “
on
the suitable candidate and submitted the report to the MEC, can the
MEC pronounce of (sic) the validity of the appointment. However,
since the Council has not pronounced itself on the suitable candidate
for the position of municipal manager, I advise that the
selection
panel report on the suitability and recommendation of the municipal
manager be tabled before Council as a matter of urgency”.
The
MEC advised that the speaker should call an urgent special council
meeting as soon as it was practically possible and that the
selection
panel report on the suitability and recommendation of the municipal
manager be tabled by the mayor and for Council to
resolve
accordingly.
[45]
It is common cause that the Council
resolved on 10 January 2024 to appoint Mr Maine as municipal manager.
[46]
The
Applicant does not seek an order from this Court
to pronounce on the lawfulness of the Council’s decision to
appoint Mr Maine
as the municipal manager. The Applicant only seeks
interim relief to interdict the decision to take effect, pending the
finalisation
of a review application.
[47]
An
applicant for interim relief has merely to show
that it has a right, although the right might be open to doubt, and
has to make
only the averment that, if proved at a subsequent
hearing, will prove its right.
[48]
In my view, the Applicant has made out a
prima facie
case
that there was not full compliance with the Regulations that govern
the appointment of municipal managers and that the deviation
is not
minor, as the Regulations are peremptory.
Harm
[49]
Once a
prima
facie
right is established, the
applicant must show irreparable harm or damage and a well-grounded
apprehension of a prejudicial act on
the part of the respondent.
[50]
In respect of harm, the Applicant’s
case is that the “
injury this
unlawful process brings about not only befalls SAMWU and the
workforce, but also the Municipality itself”.
This
is so because Mr Maine will be performing the functions of a
municipal manager, under circumstances where his appointment is
unlawful. The position of municipal manager carries with it
significant power and duty and Mr Maine will deal with the citizenry
and service providers, outside of the municipal structure and he
cannot be allowed to do so, pending the finalisation of the review
application.
[51]
The Applicant further submitted that the
resolution of 10 January 2024 undermines and derails the
implementation of the Municipality’s
statutory authority, it
implicates the Municipality’s capacity to carry out its
Constitutional mandate of service delivery.
[52]
Mr Maine will take important decisions
having a bearing on the finances of the Municipality and service
delivery, he will make a
myriad of administrative and executive
decisions daily, which may result in litigation against the
Municipality, owing to the legally
defective appointment of Mr Maine
as municipal manager.
[53]
The Respondents did not put up any
convincing answer to the Applicant’s averments of harm.
[54]
In my view, the Applicant has shown that
harm is likely to be suffered if the interim interdict is not
granted. The harm would extend
to the general public and could have
serious financial and operational repercussions for the Municipality.
Balance of convenience
[55]
The
Court has to consider the balance of convenience and in exercising
its discretion, weighs the prejudice to the applicant if
the
interdict is withheld against the prejudice to the respondent if it
is granted. It is the balancing of respective harms and
an assessment
of which of the parties will be least seriously affected or
prejudiced by being compelled to endure what may prove
to be a
temporary injustice until the just answer can be found at the end of
the trial.
[8]
[56]
The
Applicant’s case is that the balance of
convenience favours them. The Applicant submitted that the
Municipality will suffer
no harm as it may appoint an acting
municipal manager and the review application can be prosecuted
urgently. More so, the Municipality
failed to fill the position for
more than a year. The harm to be suffered by the Applicant, the
citizenry and the rule of law has
been addressed
supra.
[57]
Mr Maine submitted that he would be
severely prejudiced if he was to be removed from a position he was
lawfully appointed to, due
to a meritless challenge which is
politically motivated. He has relocated to Petrusburg and as such,
incurred great expenses to
be available to tender his services to the
Municipality. He would not be receiving a salary if the interdict is
granted, which
would be blatantly unfair.
[58]
Mr Maine further submitted that it is
important for the Municipality to have continuity and to have another
acting municipal manager,
would not serve the interests of the
Municipality. He also stated that all actions and powers of a
municipal manager are strictly
regulated in terms of applicable
legislation and there is reporting to the Council and the Auditor
General, wherefore he does not
have a free reign where he can do as
he pleases.
[59]
The Applicant responded that the issue is
not whether the municipal manager has a free reign, but rather
whether he was lawfully
appointed in the first place.
[60]
It cannot be disputed that Mr Maine will be
prejudiced if the interim interdict is granted. This Court has to
balance the
respective harms and make an assessment of which of the parties will
be least seriously affected or prejudiced by being
compelled to
endure what may prove to be a temporary injustice until the just
answer can be found when the review application is
adjudicated upon.
[61]
In my view, the
balance of convenience favours the Applicant – more is at stake
than just the prejudice to an individual,
the proper functioning of
the Municipality and the lawfulness of decisions taken on a daily
basis are relevant considerations in
favour of the Applicant. The
harm to Mr Maine can be limited by expediting the subsequent
litigation to be instituted by the Applicant.
Furthermore, the
Municipality has been dragging its feet to appoint a permanent
municipal manager for a material period of time
and a further delay
in the process does not outweigh the prejudice alleged by the
Applicant, more so where it is allowed to appoint
an acting municipal
manager in the interim.
Alternative remedy
[62]
The final requirement
for the grant of an interim interdict is the absence of another
adequate remedy.
[63]
Mr Grobler on behalf
of the Applicant submitted that the Applicant has no alternative
remedy, except approaching this Court for
interim relief. The
appointment of a municipal manager constitutes administrative action,
which must be overturned by judicial
decree. A review application
must be launched and to avoid the interim harm, an interim interdict
is sought.
[64]
The remedy that will be adequate at this
point, is a temporary injunction in the form of an interim interdict,
protecting the
status quo
prior
to the Council resolution of 10 January 2024, pending the
finalisation of the Applicant’s review application.
Conclusion
[65]
In
National
Gambling Board v Premier, Kwazulu-Natal and others,
[9]
the
Constitutional Court considered interdict proceedings and held that:
‘
An
interim interdict is by definition
“
a
court order preserving or restoring the status quo pending the final
determination of the rights of the parties. It does not involve
a
final determination of these rights and does not affect their final
determination.”
The dispute in an
application for an interim interdict is therefore not the same as
that in the main application to which the interim
interdict relates.
In an application for an interim interdict the dispute is whether,
applying the relevant legal requirements,
the
status quo
should be preserved or restored pending the decision of the main
dispute. At common law, a court's jurisdiction to entertain an
application for an interim interdict depends on whether it has
jurisdiction to preserve or restore the
status quo
. It does
not depend on whether it has the jurisdiction to decide the main
dispute.
[66]
The
relief sought by the Applicant is interim in
nature, pending the final determination of a review application. The
Applicant has
satisfied the requirements for an interdict and is
entitled to interim relief
pendente
lite.
Costs
[67]
The last issue to be
decided is the issue of costs.
This
Court has a wide discretion in respect of costs, considering the
requirements of law and fairness.
[68]
In
Zungu
v Premier of the Province of KwaZulu-Natal and Others,
[10]
the
Constitutional Court confirmed the rule that costs follow the result
does not apply in labour matters. The Court should seek
to strike a
fair balance between unduly discouraging parties from approaching the
Labour Court to have their disputes dealt with
and, on the other
hand, allowing those parties to bring to this Court cases that should
not have been brought to Court in the first
place.
[69]
Counsel for both parties argued that a cost
order should be awarded in favour of their respective clients.
[70]
This is a case where the Court has to
strike a balance. The generally accepted purpose of awarding costs is
to indemnify the successful
litigant for the expense he or she has
been put through by having been unjustly compelled to initiate or
defend litigation. Considering
the facts placed before me, this is a
matter where the interest of justice will be best served by making no
order as to costs.
[71]
In the premises, I make the following
order:
Order
1.
Pending the
finalisation of the review proceedings contemplated in paragraph 3 of
this order, the Respondents are interdicted and
restrained from
implementing the Council Resolution of 10 January 2024 and giving
effect to the decision to appoint the Second
Respondent as municipal
manager of the First Respondent;
2.
Pending the
finalisation of the review proceedings contemplated in paragraph 3 of
this order, the Second Respondent is interdicted
and restrained from:
2.1.
Performing any
acts, duties and attending to any function related to the position of
municipal manager of the First Respondent;
2.2.
Holding himself out to be the
municipal manager of
the First Respondent;
3.
The Applicant has to
institute proceedings in this Court seeking the review and setting
aside of the Council Resolution of 10 January
2024, alternatively
claiming such declaratory relief as may be necessary, within 5 Court
days from the date of this order, failing
which this order will
automatically lapse;
4.
The parties are
directed to jointly approach the Judge President of the Labour Court
with a request and motivation to expedite the
adjudication of the
application to be filed by the Applicant.
5.
There is no order as
to costs.
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For the
Applicant:
Advocate S Grobler SC
Instructed
by:
Kramer Weihmann Inc Attorneys
For
the Respondents:
Advocate L A Roux
Instructed
by:
Michael du Plessis Attorneys
[1]
Act
32 of 2000.
[2]
Published
under GN 21 in Government Gazette 37245 of 17 January 2014.
[3]
1914
AD 221
at 227.
[4]
1948
(1) SA 1186 (W).
[5]
1957
(2) SA 382
(D) at 383D–F.
[6]
1988
(4) SA 326
(T) at 327C – D.
[7]
CB
Prest, ‘
The
Law and Practice of Interdicts
’,
Juta at pp 52 – 61.
[8]
Prest,
“
The
Law and Practice of Interdicts
”
at pp 72 – 73.
[9]
[2001]
ZACC 8
;
2002
(2) SA 715
(CC) at para 49.
[10]
(2018)
39 ILJ 523 (CC) at para 24.