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2024
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[2024] ZAECMHC 58
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O.R Tambo District Municipality v Mbewu (5403/2022) [2024] ZAECMHC 58 (16 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION,
MTHATHA
)
CASE
NO.:
5403/2022
In
the matter between:
O.R.
TAMBO DISTRICT MUNICIPALITY
Applicant
and
PHENDULE
MBEWU
Respondent
JUDGMENT
JOLWANA
J
Introduction
[1]
T
his is a
self-review application in which the applicant seeks the review and
the setting aside of a decision by its erstwhile acting
municipal
manager (Ms Mnyanda) to permanently withdraw disciplinary charges
which had been preferred against the respondent by
her predecessor.
In seeking this relief, the applicant relies on the doctrine of
legality.
Background.
[2]
In November
2020 the respondent was one of the applicant’s employees who
allegedly participated in what the applicant regarded
as an
unprotected strike. He was placed on precautionary suspension with no
loss of benefits pending a disciplinary hearing that
was to be
instituted against him. The applicant’s then-acting municipal
manager (Mr Mase) constituted a disciplinary panel
to deal with the
matter. To this end, Mr Mase appointed the evidence leader and the
presiding officer.
[3]
The disciplinary hearing was scheduled to take place on 5 March 2021.
However, it could not proceed and was postponed to the
11 and 12 May
2021. There were several other postponements about which details are
sketchy and there is a dispute between the parties
as to the reasons
for the said postponements. On 5 October 2021, Ms Mnyanda wrote a
letter to the respondent advising him that
the respondent’s
disciplinary hearing and the charges preferred against him have,
together with other matters, been considered.
He was advised that
consideration included taking a hard look at the issues involved, the
implementation of the decisions of its
management as well as council
resolutions with a view to achieving good governance in the
municipality. He was further advised
that his disciplinary hearing
did not progress resulting in the applicant losing appetite to
proceed with it taking into account
the time that elapsed since the
charges were preferred against him. In the final analysis, the
respondent was informed that the
charges against him were permanently
withdrawn and that his suspension was being lifted. He was thereupon
directed to return to
work.
[4]
At the time of the withdrawal of the charges and the lifting of the
respondent’s suspension, the disciplinary panel constituted
by
Mr Mase had not heard any evidence nor had the respondent been asked
to plead to the charges. Subsequent to the withdrawal of
the charges
Mr Mkize was appointed as the applicant’s municipal manager on
a long-term basis presumably on a five-year contract.
On 07 December
2021, Mr Mkize wrote an email to the respondent advising him that the
disciplinary hearing which had previously
been scheduled for the 11
and 12 May 2021 was rescheduled for the 14 and 15 December 2021. It
appears that when the disciplinary
hearing was rescheduled for the 14
and 15 December 2021 Mr Mkize was not aware that his predecessor, the
applicant’s then-acting
municipal manager, Ms Mnyanda had
withdrawn the charges.
[5]
The fact of the withdrawal of the charges was brought to Mr Mkize’s
attention by the respondent’s Trade Union in
a letter dated 9
December 2021. The respondent’s Union further informed him that
with the charges having been withdrawn,
neither they nor their member
would participate in the rescheduled disciplinary hearing. Mr Mkize
responded to the respondent’s
Trade Union’s letter
advising it that the applicant did not have the power to interfere
with the disciplinary process against
the respondent which was being
conducted as provided for in the applicable collective agreement. He
further expressed the view
that the withdrawal letter was not based
on facts and was legally unsound for the respondent’s case. He
further said that
it was in any event superseded by his own decision
in his capacity as the applicant’s municipal manager and
accounting officer.
He told the Union that the disciplinary hearing
would accordingly proceed as scheduled.
[6]
It is common cause that the respondent did not attend the
disciplinary hearing on 14 and 15 December 2021. It therefore
proceeded
in his absence and according to Mr Mkize, the applicant’s
evidence was heard. The respondent was found guilty in absentia
on
five of the eight charges that were preferred against him. On 9 March
2022, Mr Mkhize wrote a letter to the respondent informing
him of the
outcome of the disciplinary hearing and the recommendations of the
presiding officer. He thereupon terminated the respondent’s
services with immediate effect.
[7]
The respondent was unhappy with his dismissal and referred an unfair
dismissal dispute to the South African Local Government
Bargaining
Council (the bargaining council). The matter was eventually set down
for arbitration on 10 August 2022. At the commencement
of the
arbitration proceedings, the respondent’s Union representative
raised a point in
limine
contending that the charges in
respect of which the respondent was dismissed had been withdrawn
prior to his dismissal. Parties
were directed to make written
submissions on the point in
limine
subsequent to which a
determination would be made. The commissioner delivered a ruling to
the effect that the reinstatement of
the charges was wrong in law and
that the disciplinary proceedings of the 14 and 15 December 2021 were
accordingly a nullity. He
thereupon issued an order for the
retrospective reinstatement of the respondent to his job together
with his salary and benefits
as if he was never dismissed.
The
legality self-review.
[8]
The applicant places much reliance, in the main, on section 55 (1)
(g) of the Systems Act
[1]
.
Section 55 (1) (g) provides that in her/his capacity as head of
administration of a municipality, the municipal manager is
responsible
and accountable for the maintenance of discipline of
staff, subject to the policy directions of the municipal council
[2]
.
Mr Mkize further refers to the Disciplinary Procedure Collective
Agreement (the DC Code), in particular, clause 1.2.11 thereof.
The
relevant provisions of the DC Code, in essence, proscribe any action
that will have the effect of disrupting the operations
of the
municipality other than as provided for in the Labour Relations Act.
In his founding affidavit, Mr Mkize makes the point
that an
identification process was undertaken resulting in the respondent
being identified as one of the instigators of the unprotected
disruptive strike which led to
the
respondent being charged with misconduct. He contends when Ms Mnyanda
took the impugned decision to withdraw the charges, the
decision
taken by Mr Mase to subject the respondent to a disciplinary process
was, contrary to the provisions of the DC Code, rendered
nought.
[9]
Therefore, so went the contention, the withdrawal of the charges
undermined the applicant’s fair labour practice rights
which
are enshrined in section 23 of the Constitution. It also made it
difficult for a municipal manager to undertake her/his responsibility
of maintaining staff discipline and promoting sound labour relations.
Mr Mkize further contends that in acting as she did, Ms Mnyanda
usurped the powers of the presiding officer of the disciplinary
hearing thus disregarding the provisions of the DC Code which he
says
cannot be wished away or disregarded as it is the applicable legal
prescript. He says that when the charges were withdrawn
the presiding
officer was still seized with the matter. Therefore, Ms Mnyanda acted
ultra
vires
in her powers as the then-acting municipal
manager at the time. He contends that Ms Mnyanda withdrew the charges
without even seeking
representations from the prosecutor or evidence
leader so as to assess whether there was
prima facie
evidence
against the respondent.
[10]
The respondent’s case is simply that the relief sought by the
applicant is academic on the basis that the applicant’s
then
accounting officer, Ms Mnyanda withdrew the charges levelled against
him permanently and lifted his suspension. Therefore,
with the
charges having been withdrawn there was no case pending against him
which could have been reinstated before a disciplinary
hearing. He
further contends that when on 7 December 2021 he received the notice
that his disciplinary hearing was rescheduled
for the 14 and 15
December 2021, it was already two months after the withdrawal of the
charges and his reinstatement, and he had
already returned back to
work and was executing his duties.
[11]
He contends that the disciplinary hearing that led to his dismissal
on 9 March 2022, was unlawful and a gross miscarriage of
justice
which he challenged through the arbitration proceedings that took
place at the bargaining council as an unfair dismissal
dispute. The
commissioner gave an award in his favour declaring that his dismissal
was null and void and that the reinstatement
of the charges was
unlawful and reinstated him. The respondent further says that the
commissioner’s arbitration ruling remains
extant as it has
never been challenged in the Labour Court. On all of these bases, the
respondent contends that the relief sought
was both academic and
incompetent.
[12]
The respondent further raises a point in
limine
that Ms
Mnyanda, in her capacity as the then acting municipal manager who
took the decision to permanently withdraw the charges
has a direct
interest in the matter and should have been cited. Her decision was
being challenged without her having been given
a hearing. The
respondent also challenges the relief sought by the applicant for the
stay of any action or motion concerning the
dispute between the
parties including the matter they said was before the bargaining
council pending the outcome of this review
application. The
respondent contends that no action or motion proceedings are pending
before the bargaining council. He says that
a matter that was before
the bargaining council was concluded and therefore the relief sought
was incompetent. The respondent further
challenges the
appropriateness of the main relief in which the applicant seeks an
order reviewing and setting aside its own decision
taken on 5 October
2021 by Ms Mnyanda relying on the principle of legality. He contends
that Ms Mnyanda, in her capacity as the
acting municipal manager at
the time, had the power to charge and subject the applicant’s
employees to a disciplinary process.
Therefore, she also had the
power to withdraw the charges after due consideration of whatever
relevant factors were before her.
In a nutshell, the respondent
contends that all the relief sought by the applicant is incompetent.
The
analysis
[13]
The constitutional principle of legality on which the applicant
places reliance in championing its case was well articulated
during
the early days of our constitutional democracy in
Fedsure
Life Assurance
[3]
in which in a joint judgment of Chaskalson P, Goldstone J and
O’Reagan J, the court said:
“
[A]
local government may only act within the powers lawfully conferred
upon it. There is nothing startling in this proposition –
it is
a fundamental principle of the rule of law, recognised widely, that
the exercise of public power is only legitimate where
lawful. The
rule of law – to the extent at least that it expresses this
principle of legality – is generally understood
to be a
fundamental principle of constitutional law….”
[14]
The applicant’s case appears to be that the withdrawal of the
charges against the respondent by Ms Mnyanda was not in
accord with
section 55 of the Systems Act or the applicable DC Code. Therefore,
contends the applicant, Ms Mnyanda usurped the
powers of the
presiding officer of the disciplinary hearing who was still seized
with the matter as he had not yet made any factual
findings or
determination on the charges that were pending before him. As I
understand the argument, once a disciplinary hearing
is set up by a
municipal manager and its panel including its prosecutor and its
chairperson is appointed, the municipal manager
becomes
functus
officio
. This is regardless of the fact that the charges so
preferred by the municipal manager against an employee may not have
been read
to the employee and she/he may not have pleaded to them
yet.
[15]
The provisions of section 55 relevant to this matter are the
following:
“
(1)
As head of administration the municipal manager of a municipality
is, subject to the policy directions of the municipal council,
responsible and accountable for–
(b)
the management of the municipality’s administration in
accordance with this Act and other legislation applicable to the
municipality;
(e)
the appointment of staff other than those referred to in section 56
(a) subject to the Employment Equity Act, 1998 (Act 55 of
1998);
(f)
the management, effective utilisation and training of staff;
(g)
the maintenance of discipline of staff;
(h)
the promotion of sound labour relations and compliance with
applicable labour legislation.
(2)
As accounting officer of the municipality the municipal manager is
responsible and accountable for –
(a)
all income and expenditure of the municipality;
(b)
all assets and the discharge of all liabilities of the municipality;
and proper and
diligent
compliance with the Municipal Finance Management Act.”
[16]
The applicant contends that Ms Mnyanda’s withdrawal of the
charges and the reinstatement of the respondent is a far cry
from the
maintenance of staff discipline, the promotion of sound labour
practices or compliance by the municipality with applicable
labour
legislation. I understand this contention to be that the withdrawal
of the charges was not rationally connected to the maintenance
of
staff discipline, the promotion of sound labour relations and
ensuring compliance by the municipality with applicable labour
legislation. Regrettably, there is no attempt by the applicant to
explain these contentions. They are just put up without any
indication of why they are made. It is not explained how the
withdrawal of the charges by its then accounting officer Ms Mnyanda
contravened section 55 of the Systems Act. It is also not explained
how the withdrawal of charges would be antithetical to the
promotion
of sound labour relations with its employees.
[17]
There is no indication of how many employees were part of what the
applicant refers to as the unprotected violent strike and
how many,
if any other employees have been subjected to a disciplinary process
and what the outcome was. In fact, the respondent
appears to have
been the only one subjected to a disciplinary process if regard is
had to the charge sheet. Mr Mkize who deposed
to the founding
affidavit on behalf of the applicant baldly asserts that the
respondent is not the only person whose charges were
wrongly and
unlawfully withdrawn by Ms Mnyanda. However, he does not state what
he did regarding those other employees. He then
makes an argument
about the necessity for an injunction staying any proceedings
emanating from Ms Mnyanda’s decision pending
the finalisation
of this self-review application.
[18]
This averment is difficult to understand. On the one hand, it sounds
as if it is some kind of a prayer for interim relief pending
the
review application. However, nothing is said about interim relief nor
are its requirements traversed. On the other hand, if
the decision of
Ms Mnyanda as it related specifically to the respondent is the one
sought to be invalidated in circumstances in
which in the applicant’s
own mouth, the respondent was not the only employee whose charges
were wrongly and unlawfully withdrawn
by Ms Mnyanda, nothing is said
about those other employees and they are also not cited. It is
difficult to avoid the feeling that
Mr Mkize is not being candid with
this Court. He seems to be pursuing the respondent in a selective and
possibly vindictive fashion,
not on the basis of a well-founded
belief or even advice that as a matter of law Ms Mnyanda in her
capacity as the incumbent in
the office of the municipal manager, had
no power to withdraw any charges against any employees who were
suspected of having committed
misconduct.
[19]
There are further difficulties with the applicant’s reliance on
the DC Code. First, the DC Code is silent on the power
or lack
thereof of the municipal manager to withdraw charges against
employees. Second, the DC Code provides that an allegation
of
misconduct against an employee shall be brought to the municipal
manager’s attention. The municipal manager is empowered
to
consider the allegation and decide if he should institute
disciplinary proceedings which he is enjoined to do only if he is
satisfied that there is a
prima facie
case of misconduct. The
suggestion that once a municipal manager decides to institute
disciplinary proceedings against an employee
and constitutes a
disciplinary committee he becomes
functus officio
is difficult
to understand. The contention that a chairperson of a disciplinary
hearing who has not heard any evidence and no charges
have been put
against the employee who has yet to plead to them is somehow “seized”
with the matter is equally problematic.
[20]
Some of the problems with this proposition are the following. Were it
to be true, it would mean that if the municipal manager
becomes aware
that the information which led to the charges being preferred against
an employee was totally incorrect, unreliable
or even false, he
cannot withdraw the charges. This calls into question his own power
provided for in section 55 of the Systems
Act to decide if, based on
the information available to him he should prefer disciplinary
charges against an employee. Furthermore,
where an employee had been
suspended and charges against him have been preferred he must
continue paying that employee who is sitting
at home on precautionary
suspension waiting for the next date on which the hearing may have
been set down or postponed. Furthermore,
the disciplinary hearing
process must convene just for the withdrawal of the charges that had
not even been read to the employee
who, as a result, had not even
pleaded to them nor was any evidence tendered at that stage. The
expenses involved in convening
an unnecessary disciplinary hearing
are contrary to the municipal manager’s other obligations
imposed on him by section 55
of the Systems Act, in particular
subsection (2)(a).
[21]
Subsections 55 (2) (a) and (c) provide in no uncertain terms that the
municipal manager, as an accounting officer of a municipality,
is
responsible and accountable for all income and expenditure of the
municipality. Furthermore, he is accountable for proper and
diligent
compliance with the Municipal Finance Management Act
[4]
.
In this case, the prosecutor, and the presiding officer who
constituted the disciplinary panel were Mayors
from
the Buffalo City Metropolitan Municipality and Amathole District
Municipality respectively. Therefore, both of them were from
outside
the applicant’s employment and jurisdiction. They would have to
leave their workstations, make travelling arrangements
with the
attendant travelling expenses being incurred by the applicant, and
travel hundreds of kilometres to attend to the withdrawal
of the
charges that were never put to the applicant. None of this makes any
sense.
[22]
Section 62(1) of the Municipal Finance Management Act (the MFMA)
provides:
“
(1)
The accounting officer of a municipality is responsible for managing
the financial administration of the municipality and must
for this
purpose take all reasonable steps to ensure –
(a)
that the resources of the municipality are used effectively,
efficiently and economically,
…
(d)
that unauthorised, irregular or fruitless and wasteful expenditure
and other losses are prevented;”
[23]
Absent specific legislative provisions, I do not see how not
withdrawing the charges once the municipal manager decides that
the
disciplinary charges against an employee are no longer feasible or
that it was no longer in the interest of good governance
or sound
labour relations in the municipality to continue with the charges
when she is responsible for the financial administration
of the
municipality would be rational. I do not see how allowing the hearing
to continue would amount to ensuring the effective
and efficient use
of municipal resources or the prevention of fruitless and wasteful
expenditure by allowing the expenditure that
would be incurred in
convening the disciplinary hearing when there is no longer a need for
that expenditure to be incurred. None
of these scenarios are dealt
with in the founding affidavit.
[24]
There is another matter of some significance that Mr Mkize deals with
rather glibly in his founding affidavit. I consider it
necessary to
recap the averments relevant to that relief to contextualise the
point I am making in this regard. That issue relates
to the relief
for the stay of proceedings in an unidentified matter that he says is
before the bargaining council. The evidence
he placed before this
Court in relation to that relief was that as a result of the hearing
of the disciplinary proceedings in the
absence of the respondent, the
respondent was found guilty on five of the eight charges and a
sanction of dismissal was effected
on 09 March 2022. The respondent
then referred an unfair dismissal dispute to the bargaining council.
On 20 August 2022, the commissioner
issued a ruling in terms of which
it was determined that Ms Mnyanda acted within her powers in
withdrawing the charges. The respondent
sought a variation of the
ruling on 7 October 2022 which was granted on 11 October 2022. Mr
Mkize then makes the point that the
variation happened within 4 days
of being served with the variation application when the applicant was
still considering his options.
He then contends that the haste with
which the variation was sought and obtained leaves the applicant
without any other recourse
other than to seek a stay of any further
process pending the finalisation of this review application. However,
no interim relief
was sought or granted by this court pending this
review application. It remains obscure what the effect of this relief
would be
if it were to be granted together with the relief for the
setting aside of the withdrawal of the charges.
[25]
It is not clear why this Court was said to be the only option bearing
in mind that the review of the bargaining council rulings
and
determinations is only justiciable before the Labour Court which in
terms of section 142(11) of the Labour Relations Act
[5]
is specially empowered to “
confirm,
vary or set aside the findings of a commissioner.
”
The applicant did not challenge the ruling of the commissioner on the
respondent’s point in
limine
in any forum which therefore remains extant. The applicant just
changed tack by coming to this Court to seek relief which if granted,
would render the commissioner’s ruling nugatory without
specifically challenging its validity. The absurdity of this whole
approach is palpable.
[26]
Section 158(1)(h) provides that the Labour Court may review any
decision taken or any act performed by the State in its capacity
as
the employer, on such grounds as are permissible in law.
Axiomatically the Labour Court does have the power to deal with a
legality review at the instance of an employer such as the applicant
to review and set aside decisions taken by its own functionaries.
In
Mohlomi
[6]
the court restated the legal position as follows:
“
[33]
There is no doubt that as a general proposition, the Labour Court has
jurisdiction, in terms of Section 158 (1)(h) of the LRA
to consider
both the
applicant’s application to
review and set aside the 2016 resolution and the first respondent’s
application to review
and set aside the 2013 resolution. The Court in
Gcaba v Minister of Safety &
Security and Others
said that
jurisdiction means:
‘…
the
power or competence of a court to hear and determine an issue between
parties …’
And
in
Merafong City Local Municipality
the Court held:
‘
Section
158(1)(h) of the LRA refers to a jurisdictional power of the Labour
Court. It specifically provides that the Labour Court
‘may
review any decisions taken or any act performed by the State’.
The only way the Labour Court is able to review
is by hearing and
determining an application for review of the acts and/or decisions
contemplated in s 158(1)(h). That section
should be read as not only
conferring a power, but also jurisdiction upon the Labour Court.’
[69]
Turning to the first respondent’s counter application, it is of
course true that the first respondent does not have the
option
available to it to resort to the dispute resolution processes under
the LRA, as the applicant does. Applying the ratio in
Hendricks, it
would thus be competent for an employer in the public service, such
as the first respondent, to approach this Court
in terms of section
158(1)(h) to review and set aside decisions by functionaries that do
not conform with the principle of legality.
This would include
seeking the review and set aside the 2013 resolution, in
casu
.
There are in fact several examples of this Court reviewing and
setting aside resolutions adopted by functionaries in the public
service, on the basis of it being invalid, or null and void.”
[27]
Mr Mkize does not explain why he did not apply at the Labour Court
for the review and setting aside of the commissioner’s
ruling.
It seems to me that this would have been the most logical thing to
do. Furthermore, he does not explain why he could not
seek the same
relief he now seeks before this Court in the Labour Court in
circumstances in which the Labour Court has the power
or competence
to deal with legality reviews. When the respondent raises the same
issue Mr Mkize adopts a dismissive approach that
it is not for the
respondent to tell the applicant which forum to go to. That response
is unhelpful as it does not address the
issue or assist this Court in
appreciating the applicant’s reasoning.
[28]
The possibility of an ulterior reason for seeking to avoid that
court, absent an explanation which as I have said, has not
been
given, becomes even more real if regard is had to some aspects of the
commissioner’s ruling. There were some thought
provoking
observations by the commissioner regarding why he decided to deal
with whether Ms Mnyanda had the power to withdraw the
charges against
the respondent as a point in
limine
. He expressed himself thus
in his ruling:
“
11.
I decided to deal with this matter as a point in
limine
because it has elements of legal issues to be dealt with rather
[than] the straightforward determination of the fairness or otherwise
of a dismissal. These are:
-
Whether the
Acting Municipal Manager Ms N. Mnyanda acted ultra vires (beyond her
powers in deciding to withdraw the charges levelled
against the
applicant) on 5
th
October 2021.
-
It is not
clear when the respondent’s representative in his submissions
states that the respondent is disputing the existence
and
authenticity of the withdrawal letter because this issue was never in
dispute and parties agreed that the letter was prepared
and signed by
the Acting Municipal Manager.
-
He further
says that the reasons for such withdrawal as stated in the letter are
based on misrepresentation, fallacy, lies, misleading
and gross
dishonesty. The author of this letter is the municipal employee and
was not called by either the applicant to confirm
or dispute the
contents of the letter and this argument cannot be sustained.
-
Whether the
reinstatement of the charges through a notice sent to the applicant
on the 7
th
of December 2021 was legitimate and correct in law.
-
Whether the
disciplinary enquiry of the applicant that was arranged and set on
the 14
th
and 15
th
of December 2021 was null and void.”
[29]
Some of these issues leave a lingering suspicion that in doing what
may very well be forum shopping, the applicant’s
reasons may
not necessarily stand up to close scrutiny. In the bargaining
council, it appears from the second and third bullet
points above
that in its submissions in that tribunal the applicant, as respondent
then, tried to dispute the authenticity of Ms
Mnyanda’s
withdrawal letter. Furthermore, it tried to cast aspersions on Ms
Mnyanda by making a submission that the withdrawal
of the charges was
based on misrepresentation, fallacy, lies, misleading and gross
dishonesty. As the commissioner points out,
Ms Mnyanda was an
employee of the applicant when these submissions were made.
[30]
It appears that the applicant has sought to make a somewhat different
case in this Court which essentially is that Ms Mnyanda
had no power
to withdraw the charges. Before the bargaining council, it appears
that the applicant was, in addition, singing a
different tune arguing
that Ms Mnyanda’s letter may not be authentic and that if it
was authentic the author thereof made
misrepresentations, was
fallacious, lied and committed gross dishonesty. A bargaining council
is a statutory tribunal and the applicant
is an organ of state. For
the applicant to be vacillating between two positions depending on
which tribunal it champions its case
in is troubling. This conduct is
to be deprecated especially from an organ of State such as the
applicant. While the applicant
has annexed the bargaining council
ruling in its founding papers it has not dealt with these disparate
positions which it adopted
at the bargaining council and in this
Court.
[31]
The seriousness and the undesirability of forum shopping by litigants
were well expressed in
Gcaba
[7]
in which the Constitutional Court said:
“
Following
from the previous points, forum shopping by litigants is not
desirable. Once a litigant has chosen a particular cause
of action
and systems of remedies (for example, the structures provided for by
the LRA) she or he should not be allowed to abandon
that cause as
soon as a negative decision or event is encountered. One may
especially not want litigants to “relegate”
the LRA
dispensation because they do not “trust” its structures
to do justice as much as the High Court could be trusted.
After all,
LRA structures were created for the very purpose of dealing with
labour matters, as stated in the relevant parts of
the two majority
judgments in Chirwa ….”
[32]
There is another matter of grave concern relating to the applicant’s
candour in approaching this Court. Whatever position
Ms Mnyanda now
holds in the applicant’s staff establishment, her appointment
as an acting municipal manager has come to an
end and a permanent
municipal manager, Mr Mkize having since been appointed, there is no
explanation why she has not filed an affidavit
or why she is not
participating on behalf of the applicant in these proceedings.
Furthermore, there is no attempt by Mr Mkize to
indicate to this
Court if he sought an explanation from Ms Mnyanda and what her
explanation for her decision was. This would have
been very important
because, while contrary to the respondent’s argument that Ms
Mnyanda has a direct and substantial interest
in this case, which is
incorrect, her explanation, if one had been sought and obtained,
would have been demonstrable of the applicant's
candour and a serious
attempt to play open cards with this Court. If it was the case, as it
was submitted at the bargaining council,
that Ms Mnyanda
misrepresented facts, lied, committed falsehoods and gross dishonesty
in withdrawing the charges against the respondent,
one would have
expected that she would have been put through a disciplinary process
as such conduct is no doubt serious misconduct,
especially by a
senior employee. I hope that the applicant was not attempting to
mislead the commissioner in making those extremely
serious
allegations against its senior employee in order to sway the
commissioner to grant the relief the applicant sought in that
forum.
For all the above reasons the relief sought by the applicant is
incongruent, incompetent and is sought without any sound
factual or
legal basis. The application must, in all the circumstances therefore
fail.
The
condonation application.
[33]
Even if I am wrong in my conclusions above, there is another reason
why the applicant’s application cannot succeed. In
its notice
of motion, the applicant also seeks relief condoning the late filing
of this review application and alternatively, an
order declaring that
there is no unreasonable delay. This prayer has not been drafted in a
manner that enables an easy understanding
of the relief sought in
this regard. On the one hand, the applicant seems to accept that it
is late hence the condonation application.
On the other hand, it
seeks a declarator that there was no unreasonable delay in the
launching of the review application.
[34]
The logical place to start is the applicant’s pleaded case in
the founding affidavit. Startling as it may be, the applicant
does
not deal with this relief in its founding affidavit at all. There are
simply no averments that seek to deal with its condonation
application. There are also no averments that deal with the aspect of
that relief in which the applicant seeks a declarator that
there was
no unreasonable delay, none whatsoever. The respondent does make the
point that the prayer for condonation should not
be granted. The
respondent’s case in this regard is that the undue delay is
glaring and that there is no sound explanation
for the delay. To say
that the applicant has provided no sound explanation is an
understatement. The applicant has not given any
explanation at all
nor has it made any case that there is no unreasonable delay. This is
problematic in light of the prayer for
condonation which is set out
in the notice of motion.
[35]
Just to illustrate this point, the respondent deals with the
condonation relief in paragraph 14 of its answering affidavit.
Therein the respondent says that while the applicant seeks
condonation it should not be granted for the reason of the
shortcomings
epitomised by the failure of the applicant to make a
case for condonation and lack of a sound explanation for the delay in
the
applicant’s papers. The applicant deals with its
condonation application for the first time in its replying affidavit
but
says nothing about lateness or condonation. At paragraph 24 of
its replying affidavit, applicant has lumped paragraph 14 with five
other paragraphs of the respondent’s answering affidavit. At
paragraph 27 which is where the applicant focuses on the issue
of the
delay it simply says that with regard to prayer 2, of its notice of
motion which is where the applicant seeks the condonation
relief, it
denies that there is any delay. Nothing more is said about delay or
in amplification of its contention that there is
no delay.
[36]
Under a group of paragraphs which are captioned “THE NATURE OF
THIS APPLICATION” in its founding affidavit, the
applicant
makes the averment that its application being in the nature of a
self-review, has been lodged within a reasonable time
regard being
had to the whole conspectus of facts. Nothing more is said nor is the
conspectus of facts as would be relevant to
either its application
for condonation or its prayer for a declarator that there is no
unreasonable delay is given. All of those
facts as would enable the
court to judiciously exercise its discretion in light of the amalgam
of those facts as the applicant
would have based its contentions on
are conspicuous by their absence.
[37]
It then contends that there is no need to seek condonation as the
application was launched within a reasonable time from the
date of
the arbitration award. If that is so, I find it bewildering that the
applicant has as one of its prayers, condonation.
The arbitration
award was delivered on 20 August 2022. The applicant instituted the
review application on 03 November 2022. That
is a period of about two
months and two weeks from the 20 August 2022. What the applicant was
doing for two and a half months before
it instituted the review
proceedings on 20 August 2022 is not explained. It is also not
contended that that period was reasonable
and why that is so,
assuming the correctness of reckoning the review application date to
be the date of the delivery of the arbitration
award. That too is not
dealt with. In other words, without pleading its basis for doing so,
the applicant deals with the matter
on the basis that the date of the
delivery of the arbitration award is the correct date from which to
determine the reasonableness
of the period in which the review
application could be launched.
[38]
The decision sought to be impugned is the decision of the applicant’s
erstwhile acting municipal manager, Ms Mnyanda
withdrawing misconduct
charges against the respondent. It is common cause that that decision
is embodied in Ms Mnyanda’s
letter dated 5 October 2021. It is
further common cause that the applicant’s current municipal
manager and the deponent to
its affidavits, Mr Mkize only became
aware of that decision on 9 December 2021 on being informed in
writing by the respondent’s
Union. The applicant has not
explained or pleaded the basis on which at the very least the 9
December 2021 should not be the date
on which reasonableness should
be reckoned. An assertion that a party acted timeously must be based
on facts alleged especially
where relief is sought in the form of a
declarator that it did not delay. Similarly, where a party feels that
it may not have acted
with the desired promptitude and on that basis,
seeks condonation, it seems to me that such facts as are relevant to
that relief
must be pleaded.
[39]
This is a general principle on the basis of which the
lis
between litigants as it concerns the issue of delay is adjudicated so
that the court is in a position to identify the dispute it
must
resolve with reference to the pleadings. Whether or not a relief
sought should or should not be granted must surely depend
on the
pleaded basis on which the prayer is sought. Failing a case being
properly pleaded the basis on which the court should exercise
its
discretion becomes mysterious and foggy. That makes it difficult for
the opposing litigant to know with some degree of certainty
what the
case is that it is required to answer. Similarly, it becomes
difficult if not impossible for the court to exercise its
discretion
and to grant the condonation relief or find that there was no
unreasonable delay.
[40]
In
Molusi
[8]
the Constitutional Court was restating this fundamental principle of
our adversarial adjudication system when it said:
“
It
is trite law in application proceedings the notice of motion and
affidavits define the issues between the parties and affidavits
embody evidence. As correctly stated by the Supreme Court of Appeal
in Sunker:
‘
If
an issue is not cognisable or derivable from these sources, there is
little or no scope for reliance on it. It is a fundamental
rule of
fair civil proceedings that parties … should be apprised of
the case which they are required to meet; one of the
manifestations
of the rule is that he who [asserts] … must … formulate
his case sufficiently so as to indicate what
he is relying on.’
The
purpose of pleadings is to define the issues for the other party and
the Court. And it is for the Court to adjudicate upon the
disputes
and those disputes alone. Of course, there are instances where the
court may, of its own accord (mero motu), raise a question
of law
that emerges fully from the evidence and is necessary for the
decision of the case as long as its consideration on appeal
involves
no unfairness to the other party against whom it is directed. In
Slabbert
the Supreme Court of Appeal held:
“
A
party has to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular
case and seek to establish a different case at the trial. It is
equally not permissible for the trial court to have recourse to
issues falling outside the pleadings when deciding a case.”
[41]
Needless to say for a court to reach a point where it determines that
an application for review was moved within a reasonable
time and
therefore an application for condonation is unnecessary it has to do
so based on facts averred and pleaded by the applicant.
I just do not
see how a court would have the wherewithal to conclude that the
application was moved within a reasonable time or
that it must
exercise its discretion and condone lateness absent that issue being
properly dealt with in the pleadings. It follows
that a bald
allegation that the application was launched within a reasonable time
without the relevant factual matrix being pleaded
cannot be correct.
[42]
I am fortified in this view by what the Constitutional Court said in
Gijima
[9]
.
It said:
“
Khumalo
also says that courts have a discretion to overlook a delay. Here is
what we said:
‘
(A)
court should be slow to allow procedural obstacles to prevent it from
looking into a challenge to the lawfulness of an exercise
of public
power. But that does not mean that the Constitution has dispensed
with the basic procedural requirement that review proceedings
are to
be brought without undue delay or with a court’s discretion to
overlook a delay.’
Tasima
explained that this
discretion should not be exercised lightly:
‘
While
a court “should be slow to allow procedural obstacles to
prevent it from looking into a challenge to the lawfulness
of an
exercise of public power”, it is equally a feature of the rule
of law that undue delay should not be tolerated. Delay
can prejudice
the respondent, weaken the ability of a court to consider the merits
of a review and undermine the public interest
in bringing certainty
and finality to administrative action. A court should therefore
exhibit vigilance, consideration and propriety
before overlooking a
late review, reactive or otherwise.’
From
this, we see that no discretion can be exercised in the air. If we
are to exercise a discretion to overlook the inordinate
delay in this
matter, there must be a basis for us to do so. That basis may be
gleaned from facts placed before us by the parties
or objectively
available factors. We see no possible basis for the exercise of the
discretion here. That should be the end of the
matter …”
[43]
The impugned decision was taken by Ms Mnyanda on 5 October 2021. Mr
Mkize says he then became aware of it on 9 December 2021.
In the
founding affidavit, Mr Mkize makes it plain that he took the position
that the defence raised by the respondent’s
union and
communicated to him on 9 December 2021 had to be raised in the
disciplinary hearing. However, he does not deal with the
fact that
that is exactly what happened when the respondent raised that defence
at the bargaining council and it was sustained.
He does not explain
why he did not, at the time he became aware of the impugned decision,
consider whether his predecessor’s
decision to withdraw the
charges was lawful or not or when and how he came to the conclusion
that Ms Mnyanda had no power to withdraw
the charges. He does not
explain if he engaged with Ms Mnyanda who took the decision seeking
to understand if and why that decision
was taken as he seems to have
doubted its authenticity, in juxtaposition to its validity before the
bargaining council.
[44]
The applicant is an organ of state with unlimited access to legal
advice. That notwithstanding, Mr Mkize has taken another
incomprehensible decision. That is the decision not to challenge the
commissioner’s ruling but instead to institute the review
proceedings in a different forum while leaving the commissioner’s
ruling intact. It makes one doubt if the applicant even
legitimately
has difficulties with Ms Mnyanda’s decision as against merely
seeking to avoid the consequences of Ms Mnyanda's
decision which has
led to the reinstatement of the respondent.
[45]
The sentiments expressed by the Constitutional Court in
Asla
[10]
are
apt in this regard. It said:
“…
A
Court should be vigilant in ensuring that state self-review is not
brought by state officials with a personal interest in evading
the
consequences of their prior decisions. It should scrutinize the
conduct of the public body and its candour in explaining that
conduct
to ensure, in the public interest, open, responsive and accountable
government. Where there is glaring arbitrariness and
opportunism –
that is, where the government actor’s efforts to correct the
suspected unlawful decision serve the antithesis
of the rule of law –
the interests of justice weigh against giving it a free pass by
overlooking unreasonable delay.”
[46]
The facts which the applicant does not confront in its pleadings are
briefly the following. The review proceedings were only
instituted on
3 November 2022 which is more than 10 months after Ms Mnyanda’s
decision was brought to Mr Mkize’s attention.
That being the
case, it seems to me that a detailed account of what the applicant
was doing or why it did not immediately institute
the review
application should have been provided. That there was, at best for
the applicant, a ten-month delay is clear. That delay
was
unreasonable, and it needed to be accounted for properly. The
applicant’s decision first to see if it would succeed before
the bargaining council and only when it had lost in that forum and
probably was less confident about being successful at the Labour
Court, that it then left the commissioner’s ruling unchallenged
and now seeks a different relief in this Court is, at best,
incomprehensible and clearly disingenuous and speculative.
[47]
In
Kirkland
[11]
Cameron J said:
“
PAJA
requires that the government respondents should have applied to set
aside the approval, by way of a counter-application. They
must do the
same even if PAJA does not apply. To demand this of government is not
to stymie it by forcing upon it a senseless formality.
It is to
insist on due process, from which there is no reason to exempt
government. On the contrary, there is a higher duty on
the state to
respect the law, to fulfil procedural requirements and to tread
respectfully when dealing with rights. Government
is not an indigent
or bewildered litigant, adrift on a sea of litigious uncertainty, to
whom courts must extend a procedure ̶
circumventing lifeline. It
is the Constitution’s primary agent. It must do right, and it
must do it properly.”
Conclusion.
[48]
The applicant has failed to make out a case for condonation. It has
also failed to plead the case for its prayer for the declarator
that
it launched the review application within a reasonable time.
Therefore, its application for condonation for its failure to
institute the review proceedings and/or a declarator that it
instituted the review proceedings within a reasonable time must also
fail. As I pointed out elsewhere in this judgment, the applicant has
failed to make out a case for the review and setting aside
of Ms
Mnyanda’s decision to withdraw the disciplinary charges against
the applicant. Therefore, the application must, for
that reason too,
be dismissed.
[49]
In the result, the following order is made:
1.
The application is dismissed with costs.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Appellant
:
Adv
B. Metu
Instructed
by
:
Nosindwa Attorneys
Inc.
Mthatha
Counsel
for the Respondent
:
Adv
S.
Mapekula
Instructed
by
:
M Nzima Attorneys Inc.
Mthatha
Heard
on
:
18 April
2024
Judgment
Delivered
:
16 July
2024
[1]
Local
Government: Municipal Systems Act 32 of 2000
.
[2]
Section
55 (1)(g) of the Systems Act provides that: As head of
administration the municipal manager of a municipality is, subject
to the policy directions of the municipal council, responsible and
accountable for –
…
(g) the maintenance of
discipline of staff.
[3]
Fedsure
Life Assurance v Greater Council Johannesburg Transmissional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at 399 C-D.
[4]
Local
Government: Municipal Finance Management Act 56 of 2003
.
[5]
Act
66 of 1995.
[6]
Mohlomi
v Ventersdorp/Tlokwe Municipality and Another
[2018] 4 BLLR 355
LC;
(2018) ILJ 1096 paras 33 and 69.
[7]
Gcaba
v Minister for Safety and Security and Others
2010 (1) SA 238
(CC)
at para 57.
[8]
Molusi
and Others v Voges N.O. and Others
2016 (3) SA 370
(CC) para 27-28.
[9]
State
Information Technology v Gijima Holdings
2018 (2) SA 23
(CC) at page
39 C-F.
[10]
Buffalo City Metropolitan Municipality v Asla Construction (Pty)
Limited
2019 (4) SA 331
(CC) at para 139.
[11]
MEC
for Health, Eastern Cape and Another v Kirkland Investments (Pty)
Ltd
2014 (3) SA 481
(CC) at para 82.