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[2024] ZANCHC 68
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Sehole v Kgatelopele Local Municipality and Others (CA&R 27/2024; 1682/2023) [2024] ZANCHC 68 (26 July 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: CA&R
27/2024 & 1682/2023
Heard:
20/05/2024
Delivered: 26/07/2024
Reportable:

YES / NO
Circulate to
Judges:

YES / NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional
Magistrates:  YES / NO
In
the matter between:
SEKHOANE
BENJAMIN SEHOLE
APPLICANT
and
KGATELOPELE
LOCAL MUNICIPALITY
1
st
RESPONDENT
THE
SPEAKER OF COUNCIL
2
nd
RESPONDENT
THE
MAYOR
3
rd
RESPONDENT
THE
MUNICIPAL MANAGER
4
th
RESPONDENT
Coram: Mamosebo J et
Stanton J
JUDGMENT ON REVIEW
MAMOSEBO
J
[1]
The applicant is Mr Sekhoane Benjamin Sehole.  The first
respondent is Kgatelopele
Local Municipality (the Municipality),
established in terms of s 12 r/w
s14
of the
Local Government:
Municipal Structures Act, 117 of 1998
and falls under the ZF Magcawu
District.  The second respondent is Mr Mosala Leutlwetse,
Speaker of the Council of the first
respondent.  The third
respondent is Ms Irene Williams, the Executive Mayor of the first
respondent.  The fourth respondent
is Mr Willie Blundin, the
Municipal Manager employed by the first respondent.
[2]
The applicant launched the urgent application in Part A seeking a
declarator pending
the review in Part B.  Part A served before
Olivier AJ on 20 September 2023 which dealt with points
in limine
followed by its dismissal with costs.  Before us is the
review application, Part B in terms of which the applicant is seeking

the following relief:
2.1
Declaring that the fourth respondent, the Municipal Manager, lacks
authority to terminate
his services;
2.2
Declaring that the termination of his services by the Municipal
Manager on 31 August 2023
is unconstitutional, invalid and of no
force and effect;
2.3
Setting aside the decision by the Municipal Manager [taken] on 31
August 2023 to terminate
his services;
2.4
That the first to fourth respondents be ordered to reimburse him the
salary deductions made
by the first respondent in July and August
2023;
2.5
Interdicting and restraining the first to fourth respondents from
appointing other candidates
into the position he held, pending the
finalisation of the court proceedings;
2.6
Costs of this application on the scale as between attorney and client
to be paid by the
first and fourth respondents, jointly and
severally, the one paying the others to be absolved.
[3]
Counsel for the respondents, Adv S Kunene, contended that firstly,
the relief sought
is not a review but a declarator which must serve
before a single Judge and therefore this Court lacks the jurisdiction
to hear
the matter.  Secondly, the respondents only filed their
heads on Friday preceding the hearing on Monday and, not only have

the heads not reached the Court files but they were also six months
out of time without any application for condonation.  Thirdly,

the applicant had filed a supplementary affidavit which was met with
a
Rule 30A
Notice on 17 May 2024 but has also not made its way to the
Court files.  They contend therefore, that the supplementary
affidavit
was not compliant with the rules of Court.  The
parties were afforded an opportunity to narrow down the issues for
the Court
to further direct the proceedings.
[4]
Upon resumption, the applicants abandoned the supplementary
affidavit, which also
rendered moot the
Rule 30A
notice.  In as
far as the Court lacking jurisdiction to hear the matter on review
with two Judges sitting, we made the ruling
that the matter is indeed
a review and proceeded to hear it.
Failure by the
respondents to file Heads of Argument timeously
[5]
The parties’ attention is drawn to the Northern Cape
Rule 3(6)
pertaining to the filing of Heads of Argument and Practice Notes.
The SCA has also admonished parties in
Caterham Car Sales &
Coachworks Ltd v Birkin Cars (Pty) Ltd and Another
[1998] ZASCA 44
;
1998 (3) SA
938
(SCA) paras 36 and 37. Harms JA, then, warning practitioners by
saying:
“
[38]
Practitioners should note that a failure to give proper attention to
the requirements of the practice
note and the heads might result in
the disallowance of part of their fees.”
Practitioners
are reminded, yet again, that the derelictions are unacceptable and
must not be repeated.
[6]
It is trite that where a party fails to comply with a rule of Court
within the prescribed
timeframes, condonation must be sought.
Despite the respondents’ purported filed Heads not having
reached the Court,
they were also filed six months out of time.
Condonation is not to be had merely for the asking.  The
applicant has
not contended that the failure to purge their default
would prejudice him irreparably.  The contrary would be true if
the
hearing was postponed.
The historical
background to this review
[7]
The Municipality advertised and filled the vacant position of
Director: Technical
Infrastructure and Community Services.  Of
the five candidates who were shortlisted and interviewed, the
applicant was appointed.
The Municipality notified him of his
appointment with immediate effect by letter dated 22 December 2022,
under the signature
of the Municipal Manager, Mr Willie Blunden.  The
decision was taken at the Council meeting held on the same day by
Council
Resolution No SC 70/12/2022.  The appointment was a
fixed term contract with effect from 03 January 2023 until 31
December
2027.  His remuneration was based on Midpoint to a
total amount of R905,626.00 per annum.
[8]
In a subsequent undated letter (during February 2023) addressed to
the applicant by
the Acting Municipal Manager, Mr K Scholtz, he was
informed that, following a report that Council had received from the
MEC querying
his appointment at Midpoint salary, the Council
resolution taken on 22 December 2022 was rescinded and his salary
would now be
on a minimum point of R859,002.00.  He was directed
to repay the five months overpayment by no later than 15 June 2023.
[9]
In a letter dated 07 February 2023 by the Head of Department (HOD):
Cooperative Governance,
Human Settlements and Traditional Affairs
(COGHSTA), Northern Cape, to the Municipal Manager (KLM4) which was
initially withheld
from the applicant, he was informed in relevant
part:
“
12.
Since the Municipal Council resolved on the appointment of the
candidate without concurrence from
the MEC for local government and
offered him a Total Remuneration Package outside the ambit of the
relevant pay scales are in contravention
with the LG: Upper Limits of
Total Remuneration Packages payable to Municipal Managers and
Managers directly accountable to Municipal
Manager Gazette No 47538
dated 18 November 2022.  The decision by the Municipal Council
is unlawful.
13.
It is against this backdrop, that the municipality must re-advertise
the post of Director:
Technical, Infrastructure and Community
Services to avoid any possible litigations.”
[10]
After receiving the letter (KLM 4) from the HOD addressed to the
Municipal Manager, Council met
and resolved the issue by making the
following recommendations (KLM 5):
“
12.
That the resolution taken on 22 December 2022 at a Special Council
Meeting be rescinded.
13.
That the Council resolve that the Director: Infrastructure and
Community Services be appointed
on remunerations package R859,002.00
as from the 1 January 2023.
14.
That the Director: Infrastructure and Community Services pay back to
the Municipality the
overpayment [made] due to an error.
15.
That the Municipal Manager inform the Director: Infrastructure and
Community Services of
Council’s decision and that he be given 5
days to respond and if the Director fails to accept that the
Municipal Manager
…
(sentence ends
abruptly and is incomplete)
.
[11]
The applicant lodged a formal grievance against the Municipal Manager
on 16 May 2023.  We
cannot go into the details of the grievance
because they are not before us.  The applicant requested that
the grievance be
dealt with by the Mayor, cited as the third
respondent, Ms Irene Williams.  To his amazement, his grievance
was placed in
the hands of the very third parties that his concerns
related to.  He had also requested but was denied, a copy of the
resolution
that altered his appointment with a reduced salary.  He
applied for and was granted leave from work but on his return an
instruction
was issued to deduct over 40% of his salary for the
months of July and August 2023.
[12]
The applicant then referred the matter to the Bargaining Council
which conciliated the dispute
on 30 August 2023.  Mr Willie
Blundin, the fourth respondent, represented the Municipality at
conciliation stage and sought
an indulgence from the Commissioner
until 01 September 2023 to file written submissions.  Notwithstanding
that request, the
Municipal Manager abandoned the dispute resolution
process and declared the appointment of the applicant unlawful.  This
decision
was followed by a letter under signature of the Municipal
Manager, dated 31 August 2023, terminating the applicant’s
services
with effect from 01 September 2023.  It reads in
relevant part:
“
My
office has dictated a letter dated 22 December 2022 in which
Council’s resolution was given expression.  I want to

emphasise that your appointment was
subject
to concurrence from the MEC,
which
was clearly set out in paragraph 1 of the letter.
Subsequently,
thereafter (I attached a copy of letter from Coghsta) my office
received a letter from Coghsta dated 7 February 2023
in which the
process of your appointment was declared unlawful.  Considering
the outcomes from Coghsta and furtherance to
your dispute referral to
the SALGBC, in respect of the reduction of your salary, I must inform
you that your appointment, [due]
to no fault of yourself, has been
declared unlawful and cannot be rectified.
Therefore,
your service at the Kgatelopele Local Municipality will come to an
end on 01 September 2023.  I will give instruction
to the CFO
and the Senior Human Resource Management, to prepare the leave
accumulated.”
Jurisdiction of the
High Court
[13]
It was contended on behalf of the respondents that this Court lacks
jurisdiction to hear this
matter.  The Apex Court has in
Baloyi
v Public Protector and Others
2022 (3) SA 321
(CC) at para 40
made these salutary remarks:
“
[40]
The mere potential for an unfair-dismissal claim does not obligate a
litigant to frame her claim as
one of unfair dismissal and to
approach the Labour Court, notwithstanding the fact that other
potential causes of action exist.
In other words, the
termination of a contract of employment has the potential to found a
claim for relief for infringement
of the LRA, and a claim for
enforcement of a right that does not emanate from the LRA (for
example, a contractual right).  The
following dictum of the
Supreme Court of Appeal in Makhanya, which squarely addressed a
contractual cause of action in the employment
context, is apposite in
this regard:
'The
LRA creates certain rights for employees that include the right not
to be unfairly dismissed and [not to be] subjected to unfair
labour
practices….Yet employees also have other rights, in common
with other people generally, arising from the general
law.  One
is the right that everyone has (a right emanating from the common
law) to insist upon performance of a contract….
When
a claimant says that the claim arises from the infringement of the
common-law right to enforce a contract, then that is the
claim, as a
fact, and the court must deal with it accordingly.  When a
claimant says that the claim is to enforce a right
that is created by
the LRA, then that is the claim that the court has before it, as a
fact.  When he or she says that the
claim is to enforce a right
derived from the Constitution, then, as a fact, that is the claim.
That the claim might be a
bad claim is beside the point.'”
[14]
We are mindful that this Court has concurrent jurisdiction with the
Labour Court.  We have
assessed the jurisdiction of this Court
on the basis of the pleadings and arrived at the conclusion that this
matter does not fall
within the exclusive purview of the Labour
Court.  The applicant’s cause of action is founded on an
administrative action
under PAJA.
[15]
The question that falls for determination is whether or not the
Municipal Manager had the authority
to terminate the services of the
applicant, and if so, on what basis.  To start with, regard must
be had to the fact that
the applicant was appointed in terms of
s 56
of the
Local Government: Municipal Systems Act 32 of 2000
which
stipulates:
“
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.”
[16]
It cannot be gainsaid that the applicant was appointed as a manager
and not an acting manager.
This distinction is crucial because
the legislature has distinguished between appointments made in terms
of
s 56(1)(a)(i)
and s 56(1)(a)(ii) of the Municipal Systems Act.
Section 56(1)(c) which applies to acting managers,
stipulates:
“
(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.”
[17]
Section 56(8) provides that a person appointed in a permanent
capacity as a manager directly
accountable to the Municipal Manager
when this section takes effect, must be regarded as having been
appointed in accordance with
this section.  The appointment of
the applicant by the Municipal Council had met the requirements of s
56(1)(a)(i) and there
was no basis for the Municipality to refer his
appointment to the MEC: COGHSTA.  It is axiomatic that a HOD
cannot usurp the
function of the Court and declare an appointment
unlawful.
[18]
The pronouncements by Skweyiya J in
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
2014
(5) SA 579 (CC)
[1]
para 29 are
insightful:
“
[29]
The rule of law is a founding value of our constitutional democracy.
It is the duty of the courts
to insist that the state, in all its
dealings, operates within the confines of the law and, in so doing,
remains accountable to
those on whose behalf it exercises power.
The supremacy of the Constitution and the guarantees in the Bill of
Rights add
depth and content to the rule of law.  When upholding
the rule of law, we are thus required not only to have regard to the

strict terms of regulatory provisions but so too to the values
underlying the Bill of Rights.”
[19]
Of importance is that, wrongly or rightly, the Municipality operated
under a misconception that
its Council decision was unlawful.  It,
however, did not approach this Court to review its decision under the
principle of
legality.  Instead, its election was not only to
rescind the resolution by Council, but also to reduce the applicant’s

salary and terminate his services on the stroke of a pen.  This
conduct, especially after creating the impression that the

Municipality was following a dispute resolution mechanism only to
abandon the process overnight, has to be deprecated as acting
in bad
faith.
[20]
An MEC or other State functionaries, for that matter, is entitled to
approach the Court for relief
in circumstances where they committed
an error.  The Supreme Court of Appeal (SCA) in
Pepcor
Retirement Fund & Another v Financial Services Board and Another
[2003] ZASCA
56
;
2003 (6) SA 38
(SCA) at para 10
emphasised that public functionaries ‘
may not only be
entitled but also bound to raise the matter in a court of law
’.
In
Ntshangase v MEC for Finance: KwaZulu-Natal & Another
[2009] ZASCA 123
;
2010 (3) SA 201
(SCA); (2009) 30 ILJ 2659 (SCA),
the MEC for Finance, KwaZulu-Natal sought to review a decision
made by the chairperson of a disciplinary committee in the course
of
sanctioning an employee for misconduct.  The SCA held that the
MEC in that matter was bound to raise the irregular decision
in court
as a public functionary exercising a power in the interests of the
public in terms of legislation.
[21]
It is common cause that the applicant had not only accepted the offer
of the position, but also
accepted the salary.  It is presumed
that he had adapted his expenses to the salary and position.  The
Municipality has
not implied in its papers that the applicant lacked
the skills, expertise, competencies and qualifications required for
the said
post.  The HOD stated in the letter that the post must
be re-advertised to avoid litigation.  It is incomprehensible
how re-advertising an already filled position would avoid litigation
or right a wrong.  The Municipal Manager repeated the
HOD’s
sentiments.
[22]
The salutary remarks by Skweyiya J in
Khumalo
[2]
bear
repeating:
“
[56]
Considering the courts’ power to grant a just and equitable
remedy the impact of a finding of
invalidity may be ameliorated by
fashioning a remedy that is fair to Mr Khumalo.  In considering
the factors above, particularly
the lack of a complaint against Mr
Khumalo’s performance, a just and equitable remedy would in all
likeliness result in him
keeping his job, if his promotion were found
to be unlawful.  Therefore, on this leg of the test, the
consequences and potential
prejudice do not in this case, and ought
not in general, to favour the Court non-suiting an applicant in the
face of the delay.
The application of this aspect of the test
set in Gqwetha must be contextualised in the courts’ discretion
to grant a just
and equitable remedy.”
[23]
Regard being had to the aforementioned considerations and
authorities, it is clear to me that
the fourth respondent, the
Municipal Manager, lacked the authority to terminate the applicant’s
services.  The respondent’s
counsel conceded that the
decision to terminate the applicant’s services was unlawful but
still persisted and countered that
the Labour Court was exclusively
clothed with the jurisdiction to hear the matter.  This
submission is unmeritorious.  The
Municipal Manager’s
conduct is telling because when he sought indulgence from the
Commissioner at the Bargaining Council
he had no intention of
returning to that process.  The evidence shows that he had
already drafted a letter to be served on
the applicant on 31 August
2023 terminating his services with effect from 01 September 2023.
This is not only malicious and
vindictive conduct but also an
unlawful exercise of public power.
[24]
The Municipality could not offer a benefit to the applicant and
withdraw it, for no fault of
his, without affording him a proper
opportunity to be heard.  This is highly irregular.  When
we heard this matter on
review, the post was not yet filled.  It
is just and equitable under these circumstances for the applicant to
be restored
to the position in which he was before the resolution of
December 2022 was rescinded.
[25]
In the result, the following order is made:
1.
It is declared that the fourth respondent,
Mr Blundin, in his capacity as the Municipal Manager, lacked the
authority to terminate
the applicant’s services.
2.
The termination of the applicant’s
services on 31 August 2023 by the fourth respondent was
unconstitutional, invalid and of
no force and effect and is reviewed
and set aside.
3.
The first to fourth respondents are ordered
to reimburse the applicant’s salary deductions made by the
first respondent in
July and August 2023.
4.
The first respondent is ordered to
re-instate the applicant in the previously held position of Director:
Technical Infrastructure
and Community Services.
5.
The first to the fourth respondents are
ordered to pay the costs of this application on a scale between
attorney and client, jointly
and severally, the one paying the other
to be absolved.
MC MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
I concur.
A STANTON
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For the applicant:
Adv GI Mothibi
Instructed by:
RAMS Attorneys
c/o
Mkhokheli Pino Attorneys
For the respondents:
Adv. S Kunene
Instructed by:
Morwaagae Attorneys
[1]
Also
reported as (2014) 35 ILJ 613 (CC); (CCT 10/13)
[2013] ZACC 49
;
2014
(3) BCLR 333
(CC) (18 December 2013)
[2]
At
para 56