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2024
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[2024] ZAFSHC 215
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Melato v Masilonyane Local Municipality (2458/2023) [2024] ZAFSHC 215 (12 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 2458/2023
In
the matter between:
RAPOPI
MELATO
Applicant
and
MASILONYANE
LOCAL MUNICIPALITY
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
25
JANUARY 2024
DELIVERED
ON:
12
JULY 2024
[1]
In this application (‘the main application”) the
applicant is seeking the following relief:
“
1.
Declaring the Applicant’s acting appointment as Director
Corporate Services for the period
1
st
December 2020 to
28
th
February 2021 lawful.
2.
Directing the Respondent to pay the acting allowance which was due
and payable to the Applicant
for the period, 1
st
December
2020 to 28
th
February 2021.
3.
The Respondent to pay the costs of the application.
4.
Further and/or alternative relief.”
[2]
The respondent is not only opposing the main application, but also
filed a counter-application (“the
counter-application”)
in terms whereof it is seeking the following relief:
“
1.
That the applicant is indebted to the respondent in the sum of
R156 957.00; and
2.
The applicant is ordered to pay the sum of R156 957.00 to the
respondent
within 60 days of this order; and
3.
Payment of interest at the rate determined by the Minister of Finance
from date
of judgment until date of final payment on the
aforementioned judgment debt;
4.
Payment of interest at the rate determined by the Minister Finance
from 1 November
2022 until date of final payment on the
aforementioned judgment debt;
5.
That the respondent pays the costs of this counter-application,
including the
costs associated with the appointment of counsel, as
costs on party and party, in the event of opposition.”
The
applicant’s factual version:
[3]
On 12 June 2015, the respondent appointed the applicant as an
Information Technology Manager: Directorate
of Corporate
Services. The letter of appointment is attached to the founding
affidavit as annexure “RM2”.
[4]
On 31 August 2020 the applicant was further appointed by the
respondent as Acting Director: Corporate
Services, for the
period 1 September 2020 until 30 November 2020 (“the first
acting appointment”).
[5]
According to the applicant her acting appointment was made in terms
of section 56 of the of the Local Government:
Municipal Systems Act,
32 of 2000 (“the System`s Act”).
[6]
It appears to be common cause between the parties that the
remuneration for a manager acting in such a position
is based on 60%
of the total remuneration package payable to a manager who is
permanently appointed in the particular position.
[7]
The applicant further avers that the
Basic Conditions of Employment
Act, 75 of 1997
; alternatively, the common law, is applicable to her
acting appointment (as well as her permanent employment) in that as
an employee
of the respondent, she rendered/renders services as
required of her by the respondent as employer and the respondent, as
employer,
in turn pays remuneration for services rendered.
[8]
On 17 November 2020 and unbeknown to the applicant at the time, the
Member of the Executive Council for Corporate
Governance and
Traditional Affairs (“MEC: COGTA”) transmitted a letter
to the mayor of the respondent stating that
the applicant’s
appointment in respect of his first acting appointment must be
rescinded as he does not hold the relevant
academic qualifications
required of an incumbent to occupy the post. The said letter
reads,
inter alia
, as follows:
“
2.
I have noted that Mr Melato holds a B. Tech degree in Project Manager
and various diplomas
in the IT field and is currently the IT Manager
in the Municipality. It is important to note that the incumbent
does not
possess the relevant required qualifications (B. degree in
Public Administration, Management Sciences, Law or and equivalent)
for
the post and accordingly concurrence for the acting appointment
is not granted.
3.
You are therefore requested, through the Speaker, to call an urgent
Council meeting
where the acting appointment of Mr Melato will be
rescinded, and a suitably qualified official will be appointed.
In the
event that the municipality does not have suitably qualified
officials to act as Director: Corporate Services, you are
advised
to request a secondment from COGTA for the duration of the
vacancy.
4.
Furthermore, the mayor is hereby requested to ensure that the
recruitment and
selection process for the vacant post are completed
by the end of this calendar year.”
[9]
The applicant only learned of the aforesaid communication by the MEC:
COGTA during May 2021.
[10]
In paragraphs 5.13 to 5.15 of the founding affidavit the applicant
further avers as follows:
“
5.13
Despite this communication from the MEC, on 22 December 2020, the
Respondent’s Council resolved that
my acting appointment be
extended for a further three (3) months from December 2020 to
February 2021, advising the municipal manager
to consult the MEC on
extension of my acting appointment. I attach the resolution
marking it “RM5”. Again,
as it will appear
hereunder, it was not necessary for the Municipal Council to consult
the MEC.
5.14
Important to note on “RM5” – is that – the
Municipal Manager sought approval
of my outstanding salary, together
with extension of the acting appointment for a further three (3)
months on the same terms and
conditions as my initial acting
appointment.
5.15
Therefore, the decision of the Respondent’s Council to extend
my acting appointment was done
in consultation with the municipal
manager.”
[11]
I will return to the aforesaid annexure “RM5”.
[12]
The applicant therefore avers that on 22 December 2020, the
respondent’s counsel, in consultation with its Municipal
Manager, resolved that the applicant be paid his acting allowance for
his first acting appointment and that his acting appointment
in the
aforesaid position be extended by a further three months from 1
December 2020 until 28 February 2021 (“the second
acting
appointment”).
[13]
It is common cause that on 28 January 2021 the respondent paid the
applicable acting allowance for the first acting appointment
in the
amount of R156 957.00 over to the applicant, as also evident
from a copy of his relevant payslip attached to the founding
affidavit.
[14]
Subsequent to the above resolution of 22 December 2020, the applicant
was authorized to continue carrying out his duties
as Acting
Director: Corporate Services and the applicant duly and
properly performed his duties as such until the end of
February
2021.
[15]
On 25 January 2021 the respondent’s mayor sent a report to the
MEC: COGTA regarding the letter of the MEC: COGTA
in respect of the
rescission of the first acting appointment of the applicant, seeking
his concurrence in respect of the first
acting appointment of the
applicant and also his concurrence in relation to the extension of
the acting period, which concurrence
was, according to the applicant
not necessary.
[16]
The applicant further avers as follows:
“
5.18
I therefore submit that my appointment as Acting Director Corporate
Services was lawful and valid for both
periods starting from
September 2020 to November 2020 and from 1 December 2020 to February
2021.
5.19
I duly tendered my services to the respondent in relation to both
acting stints, without complaints
from the municipal manager or
council of the respondent. I therefore complied with the terms
of my acting appointment as
Director Corporate Services;
alternatively, in terms of the common law I rendered services as
required of me on the instructions
of my employer (municipality).
5.20
The Respondent on the other hand failed to meet its obligations in
terms of the acting appointment
as it failed to pay my acting
allowance for the period of 1 December 2020 to February 2021.
5.21
The Respondent’s conduct therefore amounted to breach of the
agreement; alternatively, contrary
to the dictates of the common
law.”
[17]
The applicant concludes as follows at paragraphs 10 and 11 of his
founding affidavit:
“
10.
Finally, the representation made to me – to wit – my
appointment as Acting Director
Corporate Services, for an extended
period until 28 February 2021, was lawfully and competently made by
the Respondent’s
council in consultation with the Municipal
Manager.
11.
The above assertion is premised on provisions of
Section 56(a)
of the
Local Government: Municipal Systems Act, 32 of 2000
.
Section 56(a)
provides that
a municipal council after consultation
of the municipal manager appoints a manager directly accountable to
the municipal manager
.”
The
respondent’s case and the consideration thereof:
Jurisdiction:
[18]
According to the respondent this court lacks jurisdiction to
entertain the main application, since the applicant’s
case
falls within the jurisdiction of the South African Local Governance
Bargaining Council (“SALGBC”). In this
regard Mr
Masihleho, on behalf of the respondent, referred to the judgment of
Apollo Tyres SA (Pty) Ltd v CCMA and Others
(2013) 34
ILJ 1120 (LAC) and submitted that an acting allowance falls under the
definition of a “benefit” in terms
section 186(2) of the
Labour Relations Act, 66 of 1995 (“the LRA”) and is
therefore subject to the dispute resolution
forums created by the
LRA. He therefore submitted that the applicant should have
referred the matter to the SALGBC in terms
of section 191 of the LRA,
being a forum established to determine unfair labour practice
disputes.
[19]
Ms Ngubeni, on behalf of the applicant, submitted that in terms of
the now trite principle set out in the matter of
Gcaba v
Minister for Safety and Security
[2009] ZACC 26
at para
[75]
it is clear that an assessment of jurisdiction must be based on an
applicant’s pleadings, as opposed to the substantive merits
of
the case:
“
[75]
Jurisdiction is determined on the basis of the pleadings, as Langa CJ
held in
Chirwa
, and not the substantive merits of
the case. If Mr Gcaba's case were heard by the High Court, he would
have failed for not
being able to make out a case for the relief
he sought, namely review of an administrative decision. In the event
of the court's
jurisdiction being challenged at the outset (in
limine), the applicant's pleadings are the determining factor. They
contain the
legal basis of the claim under which the applicant has
chosen to invoke the court's competence. While the pleadings -
including
in motion proceedings, not only the formal terminology of
the notice of motion, but also the contents of the supporting
affidavits
- must be interpreted to establish what the legal basis of
the applicant's claim is,
it is not for the court to say that the
facts asserted by the applicant would also sustain another
claim, cognizable only in
another court.
…” (My
emphasis)
[20]
In
Baloyi v Public Protector
2022 (3) SA 321
(CC) at
paragraph [31] the court reconfirmed the following principle:
“
[31]
The concurrent jurisdiction afforded to the Labour Court
and the High Court in terms of s 77(3) of the Employment
Act and s
157(2) of the LRA adds to, rather than diminishes, their
jurisdiction. In doing so, it affords litigants an
additional
right to approach either court where a dispute falls within
the ambit of those sections.”
[21]
Consequently, in my view, the mere fact that an acting allowance can
also fall under the definition of a benefit in section
186(2) of the
LRA, does not exclude the jurisdiction of the High Court. It is
evident from the contents of the founding affidavit
that the
applicant’s pleadings constitute the cause of action to be one
of
ex contractu
, as described in
section 73
of the
Basic
Conditions of Employment Act; alternatively
the common law, for
purposes of which this court does have jurisdiction to adjudicate the
application.
Validity
of the two acting appointments:
[22]
In general I have to remark that in the answering affidavit the
respondent mentions the requirements for a final interdict.
This is obviously not applicable in the present instance, since the
applicant is not seeking a final interdict, but is seeking
a
declaratory order regarding a contractual right and consequential
relief. This probably explains why the respondent did
not
persist with this argument in its heads of argument.
[23]
The applicable parts of section 56(1)(a), 56(1)(b) and 56(2) of the
Systems Act determine as follows:
“
56
Appointment of managers directly accountable to municipal managers
(1)
(a)
A
municipal council, after consultation with the municipal manager,
must appoint-
(i) a
manager directly accountable to the municipal manager; or
(ii) an
acting manager directly accountable to the municipal manager under
circumstances and for a period as prescribed.
(b)
A
person appointed in terms of paragraph
(a)
(i)
or (ii) must at least have the skills, expertise, competencies and
qualifications as prescribed.
(c
) …
(2)
A decision to appoint a person referred to in subsection (1)
(a)
(i)
or (ii), and any contract concluded between the municipal council and
that person in consequence of the decision, is null
and void if-
(a)
the
person appointed does not have the prescribed skills, expertise,
competencies or qualifications; or
(b)
the
appointment was otherwise made in contravention of this Act,
unless
the Minister, in terms of subsection (6), has waived any of the
requirements listed in subsection (1)
(b)
.”
[24]
According to the respondent the applicant was appointed to act in the
position of Director Corporate Services whilst
the applicant did not
possess the relevant qualifications for the position. The
respondent therefore avers that section 56(1)(b)
was violated by the
appointment of the applicant and that the first acting appointment,
for purposes of the counterclaim, was null
and void in terms of
section 56(2).
[25]
This has the result, according to the respondent, that the payment of
the acting allowance for the first acting appointment
of the
applicant by the respondent to the applicant was made without legal
cause and should be repaid to the respondent as claimed
in the
counter-claim.
[26]
In this regard Mr Masihleho also relied on the judgment of
Moerane
v Buffalo City Metropolitan Municipality and Others
(2020) 41
ILJ 1869 ECG where the court found that on a proper construction of S
56(2) the appointment of a person without the requisite
expertise,
competencies or qualifications as a permanent s 56 manager is null
and void by operation of law.
[27]
By implication it appears that the respondent is also relying on this
ground as one of the two grounds on which the main
application should
be dismissed since the applicant, according to the respondent, is not
entitled to any remuneration for the second
acting appointment.
[28]
It is furthermore the respondent’s case that the appointment of
the applicant for the second acting appointment,
for purposes of the
counter-claim, is null and void for the further reason that it
constituted, in the absence of the concurrence
by the MEC COGTA, a
transgression of section 56(1)(c) of the Municipal Systems Act, which
section determines as follows:
“
(
c)
A
person appointed in terms of paragraph
(a)
(ii)
may not be appointed to act for a period that exceeds three months:
Provided that a municipal council may, in special
circumstances and
on good cause shown, apply in writing to the MEC for local government
to extend the period of appointment contemplated
in paragraph
(a)
,
for a further period that does not exceed three months.”
Consideration
of the merits of the application and the counter-application:
[29]
In response to the aforesaid, it is the applicant’s case that
the first acting appointment was validly made in
terms of section
56(1)(a)(ii) since the appointment was made by the municipal council
after consultation with the municipal manager,
as determined by
section 56(1)(a) of the Systems Act. The same pertains to the
second acting appointment, including the fact
that it was for a
second period of three months.
[30]
In support of the aforesaid, the applicant is relying on annexure
“RM5” attached to the founding affidavit,
referred to
earlier in this judgment. This document constitutes an extract
from the minutes of an ordinary council meeting
of the respondent
held on 22 December 2020. The said document reflects the
following:
1.
Under the heading “
Items
” it states the following:
“
Report
of the Mayor to Council regarding the request for extension of
appointment of the Acting Position of the Director Corporate
Services.”
2.
Under the heading “Background” it states the following:
“
In
terms of section 56(1)(a) of the Municipal Systems Act, a municipal
council, after consultation with the Municipal Manager must
appoint –
(i)
An acting manager directly accountable to the Municipal Manager under
circumstances and
for a period as prescribed.”
3.
Under the heading “
Discussion
” the following is
stated:
“
It
is however worth noting that COGTA, through MEC, Mr ST Nxangisa,
cited that Mr Melato did not possess the required qualifications,
and
accordingly concurrence for the acting appointment was not granted.
Subsequent to this, the Municipal Manager opted to
have further
engagement with COGTA on the matter since it was brought up towards
the end of Mr Melato’s acting term.
This late submission
has led to the non-payment of Mr Melato’s acting allowance.
The Municipal Manager is thus seeking
the approval of council for the payment of outstanding salary to Mr
Melato as well as the
extension of the acting position of the
Corporate: Services Director.
”
(My emphasis)
4.
Under the heading “
Resolution
” the following is
reflected:
“
That
council approve the payment of acting of allowance to Mr Melato for
the month September to December 2020
.
That
council approved the extension of the appointment of Mr P Melato as
the Acting Director Corporate Services for the period of
three months
from 1
st
December 2020 until 28
th
February
2021.
That
Municipal Manager consult the MEC of COGTA regarding the appointment
of Mr Melato for a period of three months from 1 December
2020 until
28 February 2021.
”
[31]
In the subsequent report of the mayor, dated 25 January 2021,
addressed to the MEC, annexure “RM6” to the
founding
affidavit, the mayor, as political head of the municipality,
requested the MEC COGTA to condone the appointment of the
applicant
despite him not having the prescribed qualifications and furthermore
to concur with the extension of his acting term.
According to
the applicant no response was received in respect of this report.
The respondent did not allege otherwise.
[32]
As correctly pointed out by Ms Ngubeni, section 56(6) of the Systems
Act determines as follows:
“
(6)
If a person is appointed to a post referred to in subsection (1)(a)
in contravention of
this Act, the MEC for Local Government must,
within fourteen days of becoming aware of such appointment, take
appropriate steps
to enforce compliance by the municipal council
with this Act, which steps
may include an application to a court
for a declaratory order on the validity of the appointment
or any
other
legal action against the municipal council
.”
[33]
It is common cause that the MEC COGTA raised the issue pertaining to
the required qualifications of the applicant in
the letter dated 17
November 2020, annexure “RM4” to the founding affidavit.
Despite this objection, the MEC
COGTA failed to take any steps in
accordance with section 56(6), not in respect of the first acting
appointment, nor with regard
to the second acting appointment.
[34]
I agree with the contention by Ms Ngubeni that the opposition to the
present application and the counter-application
cannot constitute
“appropriate steps” as determined in section 56(6), not
with regard to the first acting appointment
nor with regard to the
second acting appointment. It appears that the respondent is by
means of the opposition to the main
application and the institution
of the counter-application attempting to have those two contracts
“set aside” or “reviewed”,
but fatally
incorrectly so. Firstly, the MEC is not a party to the present
proceedings and in terms of section 56(6) the
MEC is the party who
should have taken steps within fourteen days after becoming aware of
the two respective appointments, which,
other for the letter, did not
occur. Secondly, the respondent cannot act in the present
proceedings in the stead of the MEC
COGTA. Thirdly, there is no
application for condonation for only now attempting to have the
appointments set aside. See
State Information Technology Agency
SOC Limited v Gijima Holding (Ptyd) Limited
[2017] ZACC 40
at
para
[54]
. Fourthly, in terms of the resolutions by the municipal
council, after consultation with the Municipal Manager, during the
council
meeting of 22 December 2020, approved payment of the acting
allowance for the first acting appointment to the applicant and also
approved the second acting appointment for the months December 2020
until 28 February 2021.
[35]
In the circumstances I am of the view that the present matter is
distinguishable from the
Moerane
-judgment.
[36]
The main application consequently stands to be granted, whilst the
counter-application stands to be dismissed.
Costs:
[37]
There is no reason why costs should not follow the outcome.
Order:
[38]
The following order is consequently made:
A:
In respect of the main application:
1.
The applicant’s acting appointment as Director: Corporate
Services for the period 1 September
2020 to 30 November 2020 and
again for the period 1 December 2020 to 28 February 2021 are declared
to be lawful.
2.
The respondent is directed to pay the acting allowance which is due
and payable to the applicant for
the period 1 December 2020 to 28
February 2021.
3.
The respondent is ordered to pay the costs of the application.
B:
In respect of the counter-application:
4.
The counter-application is dismissed, with costs.
C.
VAN ZYL, J
On
behalf of Applicant:
Adv
TM Ngubeni
Instructed
by:
Neumann
van Rooyen Inc.
C/o:
Hill, McHardy & Herbst Inc
BLOEMFONTEIN
On
behalf of Respondent:
Adv
PT Masihleho
Instructed
by:
Motaung
Attorneys
BLOEMFONTEIN