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2024
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[2024] ZAECMHC 66
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Sikhundla v Alfred Nzo District Municipality and Others (2666/2024) [2024] ZAECMHC 66 (20 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION,
MTHATHA
)
CASE
NO.:
2666/2024
In
the matter between:
ZAMILE
HEBERT SIKHUNDLA
Applicant
and
ALFRED
NZO DISTRICT MUNICIPALITY
1
st
Respondent
THE
EXECUTIVE MAYOR
ALFRED
NZO DISTRICT MUNICIPALITY
2
nd
Respondent
VUKILE
MHLELEMBANA
3
rd
Respondent
LINDELANI
MALALA
4
th
Respondent
SAKHUMZI
BACELA
5
th
Respondent
JUDGMENT
JOLWANA
J
[1]
The applicant approached this Court by way of urgency on extremely
truncated time frames seeking an interim order interdicting
the first
respondent, its officials or political office
bearers
from convening
an
internal
disciplinary
inquiry against him. The said disciplinary inquiry was scheduled for
the 01 July 2024 at 8:30 in the morning. The application
consisted of
two parts, the relief referred to above being sought in part A of the
application. The relief sought in part B was
for the reviewing and
setting
aside
of the first
and third respondents’
decision
to institute a
disciplinary
hearing against the applicant and that it be declared a nullity. This
judgement pertains only to part A of the application.
[2]
The applicant is the first respondent’s municipal manager. At
the time of this application, he was on
suspension
pending certain
disciplinary charges that had been
preferred against him. The disciplinary hearing in respect of the
said charges was already underway
with some of the first respondent’s
evidence having been heard.
[3]
The charge sheet in respect of the charges relevant to this
application is dated 18 June 2024. It contains charges of
insubordination
for the applicant’s failure to return to the
municipality a cellphone, WIFI router and an iPad which he had been
directed
to return. The second charge was that of breaching the
condition for his suspension in that on 8 April 2024 he had attended
at
the first respondent’s premises without prior
consent
having been sought and obtained. Apparently it was one of the
conditions for his suspension that he would not enter the
first
respondent’s premises without having been permitted to do so.
The charge sheet indicated that the first respondent
deemed these
acts of the alleged misconduct
to have resulted in the
employer/employee relationship breaking
down. As a result in the event of
his conviction, the first respondent indicated in the charge sheet
that it intended to apply for
the ultimate sanction of dismissal.
[4]
The applicant’s case is that while
the
first respondent is entitled to subject him to a disciplinary
process, it is obliged both in terms
of
the contract of employment
and
the Local Government: Disciplinary Regulations for Senior Managers,
2010
[1]
( the Regulations) to
follow certain procedural steps before doing so. He contends that in
setting the disciplinary process in
motion,
the
first and third respondents failed to comply with these Regulations
thus delegitimising
the
whole disciplinary process and in essence
making
it illegal
even
before it commenced. This, he contends, is in breach of his
employment contract.
[5] Section 2 of the
Regulations reads:
“
(1)
This Disciplinary
Code-
a.
applies to all-
i.
municipalities;
ii.
senior managers; and
b.
is intended to –
i.
provide an internal mechanism for
management of misconduct;
ii.
establish standard procedures for
the management of misconduct;
iii.
support
constructive labour relations;
iv.
ensure a
common understanding of misconduct and discipline;
v.
promote mutual
respect between senior managers and council,
vi.
promote
acceptable conduct;
vii.
avert and
correct unacceptable conduct, and
viii.
prevent
arbitrary
or
discrimin
atory
actions.
c.
prevails in
the event of any inconsistency with any systems and procedures
adopted by a municipality in terms of section 67(1) (h)
of the Act to
the extent that those procedures apply to senior managers”.
[6]
As regards the actual disciplinary procedures provided for therein,
Regulation 5 provides in
quite
some detail
the procedures that must be followed in the event of an allegation of
misconduct against a senior manager. It reads:
“
(1)
Any allegation of misconduct against a senior manager must be brought
to the attention of the municipal council.
(2)
An allegation
referred to in sub regulation (1) must be tabled by the mayor or the
municipal manager, as the case may be, before
the municipal council
not later than seven days after receipt thereof, failing which the
mayor may request the Speaker to convene
a special council meeting
within seven days to consider the said report.
(3)
If the
municipal council is satisfied that-
a.
there is a
reasonable cause to believe that an act of misconduct has been
committed by the senior manager, the municipal council
must within
seven days appoint an independent investigator to investigate the
allegation[s] of misconduct; and
b.
there is no
evidence to support the allegation[s] of misconduct against the
senior manager, the municipal council must within seven
days dismiss
the allegation[s] of misconduct.
(4)
The
investigator appointed in terms of subregulation (3) (a) must, within
a period of 30 days of his or her appointment, submit
a report with
recommendations to the mayor or municipal manager, as the case may
be.
(5)
The report
contemplated in subregulation (4) must be tabled before the municipal
council in the
manner
and within the
timeframe as set out in subregulation (2).
(6)
After having
considered the report referred to in subregulation (4), the municipal
council must by way of a resolution institute
disciplinary
proceedings against the senior manager.
(7)
The resolution
in subregulation (6) must-
a.
include a
determination as to whether the alleged misconduct is of a serious or
a less serious nature;
b.
authorise the
mayor, in the case of municipal manager, or municipal manager, in the
case of the manager, directly accountable to
the municipal manager to
–
(i)
appoint-
(aa)
an independent
and external presiding officer; and
(bb)
an officer to
lead evidence; and
(ii)
sign the
letters of appointment.”
[7]
The provisions of Regulation 5 are what the applicant contends, a
condictio
sine
qua
non
before he can be subjected to a disciplinary process. He alleges that
none of the conditions provided for therein were complied
with thus
vitiating any contemplated disciplinary processes even before they
started.
[8]
The fourth respondent did not participate in these proceedings. The
fifth respondent filed a notice to
abide
together with
an affidavit explaining his involvement or
lack
thereof in the
disciplinary processes against the applicant. In that affidavit the
fifth respondent confirmed that he is the prosecutor
in the
disciplinary hearing against the applicant which is partly heard and
had been scheduled to continue on 8 July 2024. Most
importantly, he
said that he was not the appointed prosecutor in respect of the
charges with which these proceedings are concerned.
This therefore
means that another prosecutor has been or would have been appointed
specifically to deal with the charges relevant
to these proceedings.
[9]
The first to the third respondents filed a notice to oppose the
application. An answering affidavit
was
also filed. The deponent thereto is
the acting municipal manager of the first respondent. She indicated
therein that
she
deposed
to
it on behalf of the first to the third respondents. Purely for
brevity, I shall henceforth refer to these three respondents merely
as the respondents save where it becomes necessary to refer to a
specific respondent.
[10]
In their rather overly lengthy answering affidavit replete with
annexures
running
to more than two hundred pages overall, the respondents deal at
length with the disciplinary hearing that was already underway
and
was partly heard. I am at a loss
as
to why this extent of proxility
was
considered necessary. It induces a sense of disquiet whenever
litigants find it necessary to annex lengthy annexures with no
specific reference to relevant parts or paragraphs thereof, it being
left to the court to make the connection between what is said
in an
affidavit and the lengthy annexures. To expect a court to trawl
through mounds of annexures trying to figure out which portion
thereof is relevant and in what way should not be countenanced as it
inter alia makes the adjudicatory function even harder for
the court.
I believe that Cloete JA was expressing this principle in
Wevell
Trust
[2]
when he said:
“
It
is not proper for a party in motion proceedings to base an argument
on passages in documents which have been annexed to the papers
when
the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is manifest –
the other
party may well be prejudiced because evidence may have been available
to it to refute the new case on the facts. The
position is worse
where the arguments are advanced for the first time on appeal. In
motion proceedings, the affidavits constitute
both the pleadings and
the evidence:
Transnet Ltd v Rubenstein
,
and the issue and averments in support of the parties’ cases
should appear clearly therefrom. A party cannot be expected
to trawl
through lengthy annexures to the opponent’s affidavit and to
speculate on the possible relevance of facts therein
contained. Trial
by ambush cannot be permitted.”
[11] This principle
applies with even more force to the court that must make sense of
what case is sought to be made in respect
of a very lengthy annexure
where no specific paragraph or portion thereof is specifically dealt
with in the affidavit.
[12] In essence, the
respondents appear to be making the point that the charges preferred
against the applicant on 18 June 2024
are not new charges in that
they are the consequence of the applicant’s current suspension.
I understand the respondents’
case to be that the charges in
issue
in these proceedings are not part
of the charges that are already being heard. That is why they are not
being heard with those charges.
They just arise
out of them and therefore are not new charges. What the
respondents do not say, at least cogently and with the necessary
degree
of specificity is either that the Regulations are inapplicable
to the applicant or even better, that they were complied with in
relation to these charges. I therefore take it that the respondents
accept that the Regulations are applicable to the applicant.
If the
Regulations are applicable to the applicant which appears to be the
case, I do not know what the respondents’ case
is regarding the
Regulations. It could very well be that it is a matter best left for
determination by the court that will be hearing
part B of this
application.
[13]
The respondents also submit that this court lacks jurisdiction and
that the applicant should have, instead, approached the
Labour Court.
This, the respondents contend, is on the basis that it is the Labour
Court that ordinarily has jurisdiction. The
respondents further say
that the Labour Court has concurrent jurisdiction with this Court
only in matters relating to the termination
of an employment
contract. However, Section 77 (3) of the Basic Conditions of
Employment Act
[3]
seems to
suggest otherwise. It provides:
“
the
Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment
irrespective of whether any basic condition of employment constitute
a term of that contract”.
[14] The respondents do
not say that the applicant’s cause of action does not concern
an employment contract. They seem to
be saying that because his
employment contract has not been terminated, therefore this Court
lacks jurisdiction. This contention
is very difficult to understand.
However, because the respondents’ counsel was not present when
the matter was dealt with
in court, an issue I will say more about
later, it is better that I do not pronounce definitively
on the respondents’ case on this issue so as to enable
the court hearing part B to effectively pronounce on it without being
in any way fettered.
[15] The respondents have
also raised the issue of the inappropriateness of the relief sought
in
media res
. This, on the basis that no exceptional
circumstances have been set out in the applicant’s founding
affidavit. It is important
at this stage to point out that the
respondents have elected not deal effectively and definitely with the
only issue that is the
very genesis of this application. The alleged
failure of the respondents to comply with the Regulations, in
particular, the basis
on which a senior manager could be dismissed on
charges that are very different from the ones that were placed before
the municipal
council. It seems to me to be quite an exceptional
circumstance for an organ of state such as the first respondent and
its officials
to seek to terminate an employment contract of a senior
manager, such as the applicant, without complying with what, on the
face
of it, are requirements that must
be complied with before any contemplated disciplinary process is set
in motion. Put differently,
on the respondents’ contentions
while the Regulations require the municipal council of the first
respondent to be involved
in the process of taking disciplinary
action against its senior managers, the municipal council could very
well learn at a later
stage that a municipal manager or any of the
senior managers was dismissed as a
fait accompli
. This, on the
respondents’ proposition, is because these charges emanate from
the charges that are currently underway which
are known by the
municipal council.
[16] The respondents do
not deal with the fact that the mischief sought to be prevented by
the Regulations, namely, the dismissal
of senior managers without the
municipal council’s involvement or knowledge and even approval
would thereby be defeated.
The absurdity of that proposition becomes
very difficult to miss when these possibilities are considered. The
charge sheet in respect
of the relevant charges makes it clear that
the first respondent has every
intention
to seek the applicant’s dismissal in the event of a guilty
finding. This, without having complied with the prescribed
regulatory mechanism to
get to
that point. All these reasons speak to and make it clear that not
only has the applicant a prima facie
right
to be protected from what appears to be a possible flagrant disregard
of a legislated process for subjecting a senior manager
to a
disciplinary process but also the applicant has shown the required
exceptional circumstances for stopping the disciplinary
process in
medias
res.
[17]
In
Fedsure
Life
Assurance
[4]
the Constitutional Court established quite concretely
that
a municipality does not have power to act outside the constraints of
the applicable legislative framework. It said:
“
There
are a series of provisions in chap 10 itself which make it plain that
a local government’s powers
to act are limited to the powers
conferred by the Constitution or laws of a competent
authority.
…
.
[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…”
[18]
As I conclude I do need to deal, even if very briefly, with the issue
of urgency which the respondents have raised. Common
cause facts are
that on 18 June 2024 the second respondent made a written demand for
the return of work tools and gadgets which
remained with the
applicant even after his suspension and during the running of the
disciplinary hearing. On 25 June 2024 the applicant
responded to the
demand through his attorneys of
record
.
In that response the applicant drew the attention of the respondents
through the third respondent to the non-compliance with the
provisions
of
the Regulations giving them until the close of business on that same
day. On 26 June 2024 a directive was sought from me in chambers
through a certificate of urgency. I directed that the matter may be
heard on 01 July 2024 at 8:00 that morning. Amongst other things
I
directed that service be effected in terms of rule 4 of the Uniform
Rules of Court. I further directed the applicant’s
attorneys to
ensure that all the parties were allowed access into the court
precinct
by 07:30 on 01
July 2024.
[19]
I considered the matter to be extremely urgent even taking into
account the time lapse between the 18 June 2024 when the demand
for
the return of the tools of trade and gadgets was made and the 25 June
2024 when the applicant responded to that demand. In
the judicious
exercise of
my
discretion I
issued an appropriate directive as indicated above. All the papers
were subsequently filed including the very substantive
and lengthy
answering affidavit. On reading the papers, I became aware of further
developments that had taken place since the issuing
and
service
of the papers.
These further developments were
contained
in the
applicant’s replying affidavit in respect of which his attorney
has deposed to a confirmatory affidavit. On 29 June
2024 Ms Balfour,
the person apparently appointed as a prosecutor in respect of the
charges
with
which this
application is concerned sent a message to the applicant’s
attorney indicating that the message was written on
behalf of the
first respondent. The essence of the message was that on 01 July 2024
at 8:30 which was the date and time indicated
in the charge sheet the
applicant was required to attend the disciplinary hearing at the
first respondent’s premises. The
applicant understood the
message to mean that the disciplinary process he sought to have
interdicted would continue as scheduled
while the hearing of his
urgent application was underway.
[20]
I interpose now to point out the very important fact that the sheriff
had served the papers on all the respondents by 27 June
2024.
Therefore, the message from Ms Balfour was clearly intended to mean
that the fact that the respondents had been served with
the papers
indicating that the application would be heard on an urgent basis at
08:00 on 01 July 2024 did not deter the respondents
from starting the
disciplinary hearing at the scheduled time, at least until the court
would have heard the application and made
the determination in
respect of part A of the application. This seemed to me to be an
unnecessary escalation and complication of
the matter on the face of
a pending urgent application that was to be heard 30 minutes earlier
than the time scheduled for the
start of the disciplinary hearing. In
all the circumstances it seemed to me that the applicant would not be
able to obtain substantial
redress in due course. This is because he
faced the distinct possibility of being dismissed without a court
having made a determination
on the applicability or otherwise of the
Regulations to his disciplinary process.
[21]
At 08:00 when the matter was called, only the applicant’s
counsel Mr Bodlani and his attorney Mr Chopha were present
in court.
Despite the answering affidavit having been filed, there was no
appearance for the respondents. I enquired from Mr Bodlani
if he had
heard from the respondents’ counsel or their attorneys, the
response was in the negative. I therefore continued
hearing the
application in the absence of any appearance by or on behalf of the
respondents. It was at 08:11 when Mr Madlanga,
the respondents’
attorney walked into the court room. He was not robed for the court.
For that reason, I could not hear him
even if he wanted to be heard.
In any event, when he walked into the court room I was already
delivering the order granting the
interim relief as prayed for by the
applicant
.
[22] In all the
circumstances and for the reasons stated above I issued the following
order:
1. The applicant was
granted leave to bring this application by way of urgency in
accordance with the provisions of Uniform Rule
6(12) and that
the usual forms of service were dispensed with.
2. That pending the
finalisation of part B of this application –
2.1
the first respondent and/or any official or
political office bearer
of the first respondent, acting at
the instance of the first respondent or otherwise, is hereby
interdicted and restrained from
convening, entertaining and
continuing the internal disciplinary hearing of the first respondent,
instituted against the applicant
and set down for hearing on 01 July
2024 at 08:30.
2.2
that the disciplinary hearing is hereby
stayed; and
3.
That the costs of this application shall be
payable in part B.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances:
Counsel
for the applicant:
A
Bodlani SC
Instructed
by
:
A.W. Chopha Attorneys
Mthatha
Counsel
for the 1
st
, 2
nd
& 3
rd
respondents
:
No appearance
Instructed
by
:
Madlanga & Partners Inc.
Attorneys
c/o
:
Nodada Attorneys Inc.
Mthatha
Date
heard
:
01 July 2024
Date
delivered
:
20 August 2024
[1]
Local
government: Disciplinary Regulations for Senior Managers, 2010
published in Government Gazette Number GoN 344, G. 34213
dated 21
April 2011.
[2]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA
184
(SCA) at 200 C-E.
[3]
Basic
Conditions of Employment Act 75 of 1997
.
[4]
Fedsure
Life
Assurance Ltd and other
Greater
Johannesburg Transitional Metropolitan Council and others
[1998] ZACC 17
;
1999 (1)
SA 374
(CC) at 399 B-D