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[2024] ZAECMHC 68
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Mbewu v OR Tambo District Municipality and Another (3208/2024) [2024] ZAECMHC 68 (20 August 2024)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION –
MTHATHA)
Reportable/
Not Reportable
Case no.: 3208/2024
Matter heard on: 06 August 2024
Judgment delivered on: 20 August 2024
In the matter between:
PHENDULE MBEWU
Applicant
And
OR TAMBO DISTRICT MUNICIPALITY
1
st
Respondent
THE MUNICIPAL MANAGER: OR TAMBO
DISTRICT MUNICIPALITY
2
nd
Respondent
JUDGMENT
Zono AJ
Introduction
[1] The applicant approached this
court on urgent basis on 06
th
August 2024. The essential
relief the applicant is seeking in the notice of motion, stripped of
wordiness, is firstly the reinstatement
or payment of applicant’s
salary and associates emoluments for the month of July 2024; and the
removal of key block fitted
in his office door. Applicant’s
case is that the respondents unlawfully terminated or refused to pay
applicants salary and
associated emoluments for the month of July
2024; and that they unlawfully placed key block in the door of the
applicant’s
office.
[2] The legal basis of applicant’s
case, so the contention goes, is that there is a valid employment
contract in existence
between the applicant and the respondents,
which contract of employment gives rise to a number of rights in
favour of the applicant
and some obligations are imposed by the same
contract on the respondents. Various allegations are made in the
founding affidavit
to underscore this point. It is contended that the
respondents breached the terms of employment agreement.
[3] In paragraph 7 of the founding
affidavit the applicant contends as follows:
“
7.
In this application I seek the enforcement of the contractual
obligations I have with the respondent. This is specific performance
arising out of the contract I have with the respondents. I will
demonstrate inter alia: -
7.1
The existence of a contact
7.2
The performance on my part; and
7.3
The breach by the respondents.”
[4] In paragraph 27 of the founding
affidavit the applicant states as follows: -
“
27.
Regard being had to the fact that: -
27.1
I have a valid contract of employment with the first respondent;
27.2
My contact of employment is valid and legally enforceable;
27.3
I have rendered and I continue to tender to render (sic) my services
to the first respondent in line with my job description.
27.4 The respondents’ conduct
constitutes a breach of contract because: -
27.4.1 It deprives me access to my
work station; and
27.4.2 they refuse to pay salaries
despite being obliged to do so in line with the employment
agreement.”
[5] There are various other
allegations underscoring a point that the applicant is seeking
enforcement of the terms of his employment
contract with the
respondents.
[6] The matter is opposed by the
respondents. In doing so they filed both the notice to oppose and
answering affidavit. In the answering
affidavit the respondents raise
various issues to assail applicant’s case. Not only a litany of
points
in limine
have been raised to assail applicant’s
case, the respondents coincidentally challenge the merits of the
applicant’s
case. The upshot of respondents’ opposition
is that applicant’s case is without merit and should fail.
[7] In paragraph 7 of the answering
affidavit the second respondent gives a structure of their affidavit
which structure forms the
basis of their opposition. Applicant’s
application is strongly opposed on the basis of the following
headings: -
7.1
Jurisdiction
7.2
Urgency
7.3
Wrong or incorrect legal process followed;
7.4
Forum shopping
7.5
Elements of an interdict not fulfilled
7.6
claim not quantified and not readily ascertainable.
7.7
non joinder
7.8
Response to contentious issues; and
7.9
Relief sought by the respondent.
[8] It is pivotal to record at this
early stage that the respondents refute the validity of applicant’s
case on merits on
the basis that there is no contract in existence
between the parties. I have observed that factual basis of this
defence is intertwined
with some, if not all, of the points
in
limine.
This will be apparent as I proceed with the points
in
limine
.
[9] However it is vital that I advert
to few paragraphs in the answering affidavit where the respondents
are denying the existence
of the contract and consequently denying
that there is a breach at their instance.
[10] In the answering affidavit, the
second respondent contends as follows:-
“
39.
There is no contract in existence between the parties as I have
clarified in this affidavit before how the contract was terminated
and has not been revived.
40. Notwithstanding the judgment
Jolwana J, which was delivered on 16
th
July 2024, there
are no contractual obligations between the parties. Specific
performance therefore misplaced and cannot obtain
(all sic)
41. I specifically deny that there
is breach of contract by the respondents.”
[11] As I have stated above, some of
the facts will become clear when dealing with the points
in
limine.
Factual Background
[12] Whilst it is a common cause that
on 07
th
June 2016 the applicant entered into a written
contract of employment with the respondents, it was a salient term of
the agreement
that the respondents would give the applicant the work
station to perform his duties as a Manager: - IGR IDP Municipal
Support
and International Relations. The respondents would further
pay the applicant his salary on 25
th
day of every Month.
Consequently, the applicant was given an office at Magwa Offices and
later at Prosperity Building, Office No
F-02.
[13] In November 2020 the applicant
was suspended pending disciplinary proceedings that were launched
against him for allegedly
participated in a strike action. After
several postponement of the disciplinary proceedings, the Acting
Municipal Manager, Ms Mnyanda
penned a letter to the applicant on
05
th
October 2021 permanently withdrawing, with immediate
effect, the charges preferred against him. The applicant then went
back to
work and worked.
[14] When Ms Mnyanda’s term of
acting expired, one Sibusiso Mkize was appointed as a permanent
Municipal Manager. On 07
th
September 2021 Mr Mkize penned
a written notice to the applicant advising him of date of hearing of
disciplinary proceedings which
hearing was set down for 14
th
and 15
th
November 2021. Through his Trade Union the
applicant advised Mr Mkize in writting on 09
th
December
2021 that he would not attend the hearing on the basis that
disciplinary charges against him were permanently withdrawn.
On 10
th
December 2021 the respondents advised the applicant in writing that
the disciplinary proceedings would proceed notwithstanding
that there
was withdrawal of disciplinary charges, as he was perceived to be
facing disciplinary charges.
[15] On 09
th
March 2022 the
applicant received a letter advising that on 24
th
February
2022 he has been found guilty of the charges preferred against him
and his contract of employment was terminated with
immediate effect.
The matter was thereafter referred, at the instance of the applicant,
for arbitration to South African Local
Government Bargaining Council
(SALGBC).
[16] On 20
th
August 222 the
Commissioner (SALGBC) issued an award or rulings in the following
terms: -
“
23.
The Acting Municipal Manager Ms. N Mnyanda did not act ultra vires
i.e acted within her powers in deciding to withdraw the charges
levelled against the applicant on 05
th
October 2021.
24.The reinstatement of the charges
through a notice sent to the applicant on the 07
th
December 2021 was illegitimate and wrong in law.
25.
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.
This means that the status of the applicant is as if he was never
dismissed or his services
have never been terminated
. (my
underlining)
26.The respondent is ordered to
reinstate the applicant’s terms and conditions of employment
that existed before the applicant’s
dismissal or termination on
the 09
th
March 2022. This order is to be applied
retrospectively with effect to the said date and his salary and
benefits are due effective
from this date.
27.I make no order as to costs at this
stage.” (all sic)
[17] The respondents made an
application to this court for the review of their decision to
withdraw charges against applicant. Jolwana
J dismissed that
application with costs in his judgment delivered on 16
th
July 2024.
[18] On 25
th
July 2024 the
applicant went to his usual workplace and discovered that his office
door was fitted with a key block to prevent
his office keys from
opening the office. Upon enquiry on respondents’ security
officers, they advised the applicant that
they were instructed by the
respondents to put or fit the key block in his office door and to
deny applicant access to his office
as he was not allowed in the
respondents’ building.
[19] Upon instruction, on 25
th
July 2024 applicants’ attorneys penned a letter to respondents
demanding removal of the key block from applicant’s
office
door. Apparently the applicant had not been paid his July 2024 salary
and concormitant emoluments as his pay day is 25
th
of each
month. In the same letter of demand applicant’s attorneys
demanded payment of July 2024 salary which had not been
paid. No
response to that letter had been forthcoming.
[20]
It worths mentioning that paragraph 25 of the Arbitration ward should
serve as a guiding light throughout this application
and must serve
to inform this court and the parties as to the status of the contract
of employment between the parties and their
employment relations.
[1]
[21] Against this background I set out
to deal with respondents’ points
in limine.
Jurisdiction
[22] The respondents contend that this
matter falls within the exclusive jurisdiction of the Labour Court as
they contend that the
applicant relies on the ruling of the
commissioner issued under the auspices of the South African Local
Government Council (SALGBC).
The contention is that the applicant is
enforcing a ruling made under the provisions of
Labour Relations Act
66 of 1995
. The applicant would only be suited, so the submission
goes, in the Labour Court if he brings an application in terms of
Section 158
(1) (c) of the
Labour Relations Act to
make the ruling an
order of court. It is only after that relief has been granted that an
applicant would be able to institute Contempt
of Court proceedings.
[23] In the final analysis the
respondents contend that the Commissioner’s ruling is
unenforceable as the Commissioner himself
lacked jurisdiction to make
the ruling he made. The Bargaining Council’s ruling is a matter
to be considered by the Labour
Court should the applicant wishes to
enforce same. The court, for the aforesaid reasons, is requested to
dismiss applicant’s
application for lack of jurisdiction.
[24]
When, as in this case, the proceedings are launched by way of notice
of motion, it is to the founding affidavit which a judge
will look to
determine what the complaint is. As was pointed out by Krause J in
Pountas’
Trustee
v Lahanas
1924 WLD 67
at 68
and has been said in many other cases…. An applicant must
stand or fall by his petition and the facts alleged therein and
that,
although sometimes it is permissible to supplement the allegations
contained in the petition, still the main foundation of
the
application is the allegation of facts stated therein, because those
are the facts which the respondent is called upon either
to affirm or
deny.
[2]
[25]
The Appellate Division, as it then was, had given general guidelines
as to how to approach an issue of jurisdiction raised
in
limine.
Trollip JA
[3]
made the
following dictum as a guideline:
“
I
therefore turn to consider whether the Court a quo had jurisdiction
in these proceedings according to the general principles of
our law.
That depends on (a) the nature of the proceedings, (b) the nature of
the relief claimed therein or (c) in some cases,
both (a) and (b)”
I will
shortly deal with nature of the proceedings and the relief claimed
herein.
[26]
The Constitutional Court sealed the position about the manner in
which the issue of jurisdiction should be approached. Van
Der
Westhuizen
[4]
authoritatively
and aptly held as follows:
“
75
Ju
risdiction
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, cognisable
only in
another court
.
If however the pleadings, properly interpreted, establish that the
applicant is asserting a claim under the LRA, one that is to
be
determined exclusively by the Labour Court, the High Court would lack
jurisdiction.”
[27]
As was held by Diemond JA
[5]
it
is to the founding affidavit the Judge must look to determine what
the complaint is; because those are the facts which the respondent
is
called upon either to affirm or deny;
[6]
I set out to identify the nature of applicant’s complaint.
[28] The applicant, in his founding
affidavit characterises his complaint under the rubric: “
The
Nature of the Application”
:
An enforcement of contractual
obligations he has with the respondent. As I have alluded to in the
preceding paragraphs, the applicant
categorically contends that he
has a valid contract of employment with the first respondent, and
that contract is legally enforceable.
Termination of or refusal to
pay applicant’s salary coupled with fitting of a key block on
applicant’s office door
with a view to denying him access
thereto is perceived to be a breach of the terms of employment
contract. That is his claim as
fact.
[29]
The relief the applicant is seeking is another important factor to be
taken into account to establish the question of Jurisdiction.
[7]
In his amended notice of motion the applicant seeks the following
order in paragraph 2 thereof:
“
2.
An order declaring the respondents’ conduct of: -
2.1
Failing and/ or refusing to pay the applicant’s salaries and/
or emoluments and other ancillary incentives for the month
of July
2024; and
2.2
Placing key block to the applicant’s office being situated at
office No. F-02 1
st
Floor within the first respondent’s establishment and thereby
preventing the applicant access to that office to be unlawful
and
wrongful.
3.
An order directing the respondents to:-
3.1 pay the applicant’s
salaries contemplated in paragraph 2 above, to the applicant’s
chosen banking account…….
forthwith.
3.2 Remove the key block
contemplated in paragraph 2.2 above.
4.
That the respondents are hereby interdicted from: -
4.1
further unlawfully withholding the applicant’s salaries, and
4.2 Further placing key block to
the applicant’s office contemplated in paragraph 2.2 above.”
The
relief set out above is accompanied by a relief for an order of
punitive costs against the respondents.
[30] I am, without a doubt, of the
view that this matter concerns the enforcement of the contractual
terms which the applicant strongly
contends he has with the
respondents and are applicable as a result of a valid employment
contract that exists between the parties.
That is his claim as a
fact. I accept that the nature of the proceedings and the relief
sought by the applicant in the notice of
motion are demonstrative of
the fact that the applicant is exacting performance of contract of
employment.
[31]
The Basic Conditions of Employment Act applies to this matter for
purposes of determining the jurisdiction.
[8]
Section
77(3) of the Act 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 constitutes
a term of that contract
”
.
This settles the question of jurisdiction of this court in matters
concerning employment contracts.
[32]
Nugent JA
[9]
aptly held that:
“
[59]
The claim that was pursued before the CCMA was a claim to enforce the
right of an employee not to be dismissed unfairly (what
I have called
an LRA right) which is enforceable only in a Labour Forum.
The
claim in this case asserts for enforcement a right emanating from the
common law to exact performance of a contract. It is plain
that the
high courts have the power to consider claims for the enforcement of
employment contracts (as does the Labour Court).
[79]…..
In this case it falls within the ordinary power that the high courts
have to enforce contractual rights (expressly preserved by
the
BCEA)”.
This
application is intended to exact performance of a contract of
employment between the parties.
[33]
Labour Relations Act
[10
]
confers concurrent jurisdiction to the High Courts in matters arising
from employment and from Labour relations. The correct text
of
section 157(2)
(a) is worded as follows:
“
The
Labour Court has concurrent Jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental
right entrenched in chapter 2 of the constitution of the Republic of
South Africa, 1996, and arising from-
(a)
Employment and
from Labour relations
.”
[34]
Accordingly I find that this court is endowed with a jurisdiction to
resolve this contractual claim and to enforce common law
contractual
rights.
[11]
As a corollary I
find that this matter entails enforcement of the terms of a contract
of employment.
[35] I find no merit in respondents’
contention that this court does not have jurisdiction. I find no
merit in the contention
that the applicant is enforcing an award by
the Bargaining Council. This was a clear mischaracterization of
applicant’s case.
Nowhere in the whole tenor of the applicant’s
papers does the applicant seeks to rely on the ruling or award of the
Commissioner
or Bargaining Council of 20
th
August 2022.
The role of factual historical background played by the ruling or
award is simply to demonstrate that the employment
status of the
applicant is as if he was never dismissed or his services have never
been terminated. The status
quo ante
reverted and the
contractual position affecting the parties revived, hence the
enforcement of the contract of employment.
[36] Finally on this point, the
jurisdictional point cannot succeed and is accordingly not upheld and
consequently dismissed.
Forum Shopping
[37] This point is factually
intertwined with the point of jurisdiction. The factual scenario
underpinning them is the same. They
both share a commonality that the
applicant should have used remedies available to him in terms of the
Labour Relations Act. They
share the same view that there is no valid
contract of employment between the parties; alternatively, the
applicant should have
utilised Labour Law forums that would pave to
applicant’s remedies by invoking labour court jurisdiction.
[38] I find no merit on this point. It
accordingly cannot succeed. In the result I dismiss the point of
forum shopping.
Urgency
[39] The respondents trace this matter
from the 20
th
August 2022 when the ruling and award by the
Commissioner or Bargaining Council was issued. That is consistent
with their entire
case posited to assail applicant’s case. This
approach is fallacious and ignores a pertinent case made for urgency
by the
applicant in his founding papers.
[40] A crucial paragraph in the
founding affidavit to determine the question of urgency is paragraph
24 and 25, text of which reads
as follows:
“
24
On or about the 25
th
day of July 2024, I went to work as usual. On arrival, when I wanted
to unlock my office as usual, I discovered that a key block
has been
placed in my office door thereby depriving me access to that office.
I then went to the security personnel of the first
respondent and
enquired about the key block on my office door. They advised me that
the first respondent instructed them to put
that key block in that
office and never allow me any form of access to that office. Further
they told me that the second respondent
advised them that I am not
allowed within the first respondent’s building precinct.
25.Sequel thereto, I approached my
present attorneys of record and advised them of the predicament which
I faced on the even date.
Indeed, my present attorneys of record
penned down a correspondence which they addressed to the respondents
and the substance of
which was to seek the removal of the key block
and the payment of my July 2024 salaries which were due and payable
on that day.
As for that day my salaries were not paid despite being
due and payable to date.”
[41] Indeed the letter of demand dated
25
th
July 2024 was delivered on the same day at about
14h05 and paragraph 7 of which read as follows:
“
7.
We are therefore instructed to demand from you as we hereby do the
following: -
7.1 The removal of the key Block from
our client’s office; and
7.5 the immediate payment of our
client’s salary for the month of July 2024.”
The respondents were given until the
close of business on Friday the 26
th
July 2024 to respond.
No response had been forthcoming. The respondents rudely kept quiet.
[42] The instant proceedings were
instituted on 29
th
July 2024 and service of the papers was
effected on the same date at 11:23 upon the respondents. Looking at
the aforesaid timelines
I find respondents’ point of urgency
unmeritorious. The applicant acted with expedition to institute these
proceedings. Consequently,
I find that this matter is sufficiently
urgent to be dealt with as such. Respondents’ point of urgency
cannot succeed and
is accordingly dismissed.
Claim not quantified and not readily
ascertainable
[43] Applicant’s salary and
other concormitant emoluments are fixed and regulated by the contract
of employment. It is those
monetary assets the respondents have been
paying to the applicant up to and including June 2024. For this
reason, they are known
to the respondent and accordingly need no
quantification. The applicant’s only desire is to be paid in
terms of the contract
or that which the contract entitles him.
Nothing to be quantified in the act of unlocking and allowing
applicant access into his
office. The kind of an order the applicant
is seeking is an order “
ad
factum praestandam
,”
which is an order for specific performance. Accordingly, this point
must too fail.
Elements of the interdict not
fulfilled
[44] I have earlier alluded to the
fact that almost all respondents’ points
in limine
are
inextricably linked to the merits of the case. This one too is
eluctably bound up to the merits of this case.
[45] The provenance of this point is
that the applicant has no valid contract with the respondents as the
contract of employment
existed before dismissal had not been revived.
The Commissioner’s ruling or award kicks in to negate this
point as have been
adumbrated above. The Commissioner in the
Bargaining Council singularly ruled or found that “
the
status of the applicant is as if he was never dismissed or his
services have never been terminated
.”
[46] The applicant is contractually
entitled and has a right to his salary and concormitant emoluments on
the 25
th
day of every month. Respondent’s office No
F-02, First floor at Prosperity building is the office in which the
applicant
is contractually and legally entitled to discharge his
contractual duties. He is contractually entitled to access to that
office.
The applicant has a clear right in both aspects of his claims
which are subject of complaint.
[47] Consistent with its previous view
about the exclusive jurisdiction of the Labour Court to entertain
this matter, the respondents
contend that the applicant has an
alternative remedy to follow the remedies available in terms of the
Labour Relations Act 66 of 1995
. I have earlier found that this point
is unmeritorious as it does not find support of the facts and the
law. This point too must
fail.
[48] The aforesaid discussion disposes
of all the respondents point
in limine
. In dealing with these
points
in limine
it became apparent that I have dealt with the
merits of the case. That is so because of the nature of the points
in
limine
which are in eluctably bound up with the merits of the
case. Little, if any, is remaining on the merits of the case.
Conclusion
[49] In the amalgam of all the facts
of this case and submissions made, I have come to a conclusion that
this matter is sufficiently
urgent to warrant hearing on urgent
basis. The applicant is accordingly entitled to a leave to be heard
on urgent basis in terms
of the provisions of Rule 6(12) of the
Uniform Rules.
[50] I have found that there is a
valid contract of employment between the parties which contract
entitles the applicant to his
salary and to all the benefits
associated therewith. It is manifestly clear that the applicant
brought these proceedings to enforce
the contract of employment he
has with the respondents. I have rejected respondents’
contention that the applicant brought
these proceedings to enforce a
ruling or an award issued by the Commissioner in the Bargaining
Council.
[51] The relevance of that award or
ruling in the instant proceedings is only to demonstrate that
applicant’s contract of
employment was revived and became
extant. As a corrollary applicant’s entitlement to his salary
and associated emoluments;
and a right to utilize his office to
discharge his contractual duties were revived. It is a manifestation,
upon proper interpretation
of the award/ruling that applicant’s
contract which became extinct as a result of the unlawful dismissal
was resuscitated
and ultimately came into existence and had regained
its validity retrospectively. Applicant’s contractual rights
were revived
and accordingly remerged or resurfaced. The revival
occurred by operation of the law. Nothing needed to be done by
anybody in addition
to the award or ruling. Respondents’
contentions that there is a necessity of a positive additional step
reinstating the
applicant is without merit.
[52] In the light of the fact that the
entitlement to continue receiving salary payment and to utilize his
office, the respondents
are obliged to pay applicant’s salary
and concormitant emoluments and to allow applicant access to his
office.
[53]
This accords with the fundamental maxim
Ubi
jus, ibi remedium
( Where there is a right, there is a remedy).
[12]
Applicant’s rights to his salary and concormitant emoluments,
and to utilize his office cannot be exercise without the ability
to
enforce payment and access to office.
[54]
Centlivres CJ
[13]
stated that
:
“
There
can to my mind be no doubt that the authors of the Constitution
intended that those rights [that is the rights entrenched
in the
Constitution] should be enforceable by the court of law. They could
never have intended to confer a right without a remedy.
The remedy is
indeed, part and parcel of the right. Ubi jus, ibi remedium.”
[55]
On the other hand Holt CJ
[14]
held that:
“
If
a plaintiff has a right he must of necessity have a means to
vindicate and maintain it, and a remedy, if he is injured in the
exercise or enjoyment of it; and indeed it is vain thing to imagine a
right without a remedy; for want of right and want of remedy
are
reciprocal."
[56]
It is a common cause that the respondents failed to pay applicant his
July 2024 salary with associated
emoluments. It is also a common
cause that the respondents have denied the applicant access to his
office. And lastly, a letter
was penned and delivered to the
respondents with a view to resolve this matter out of court but to no
avail. I am therefore without
a doubt that all the requisites for the
final interdict are satisfied.
[15]
Costs
[57] There is no argument against the
general Rule that costs should follow the result. The applicant has
succeeded in this matter;
therefore, costs must follow that result.
The respondents are liable to pay applicant’s costs.
[58] However, there is vexing aspect
of this case. The respondents opted to mount a frivolous opposition
in the matter, notwithstanding
that there was absolutely no
justification cognizable in law for refusing to pay applicant’s
salary. Equally the applicant
was denied access to his office without
any legal justification. The manner in which the applicant was denied
access was manifestly
malicious and humiliating as I will demonstrate
herein below.
[59] The second respondent make the
following submission in his affidavit:
“
28.
…… In summary what occurred is that the applicant
arrived on 17
th
July 2024 without warning and accompanied by his legal
representatives wanting to see me. I was not however available. On
18
th
July 2024 a letter was sent to the applicant advising him not to
report for duty for a period of 10 days. Inexplicably he continued
to
report for duty. As a result of this conduct, the Municipality had no
alternative but to lock the office of the applicant. The
Acting
Security Manager Mr Ayanda Bomela, was also given an instruction to
remove the applicant from the premises of the Municipality.
On 25
July 2024 the applicant was again seen at the premises of the
Municipality and was requested to leave which he eventually
did.”
[60] The second respondent does not
tell what would happen after the 10-day period of wait given in the
letter of 18
th
July 2024. It is apparent that the
applicant wanted to resolve the impasse that might have been in
existence between him and the
respondents with the second respondent,
but the second respondent inexplicably and rudely did not avail
himself for that. This
attitude is consistent with the respondents’
failure to respond to applicant’s letter dated 25
th
July 2024.
[61] It is common cause that the
applicant is one of the Managers of the respondents. For him to be
dealt with in the manner it
happened, that he was instructed to be
chased away by the Security officers when there was no evidence of
him being violent must
have been humiliating not only to him but also
to his legal representatives with whom he was going on 18
th
July 2024. In fact, that conduct was intended to humiliate him. At
least the second respondent should have seen the applicant and
try to
tell him what his views are about his presence in the Municipality’s
premises. The second respondent acted in a manner
that manifest
highhandedness.
[62] At all material times the
respondents were aware of the ruling or award of the Bargaining
Council dated 20
th
August 2022. Whilst the ruling set out
in paragraphs 23-26 thereof is relevant for present purposes, I wish
to pay particular attention
to paragraph 25 thereof. The paragraph
reads as follows:
“
25
The disciplinary enquiry of the applicant that was arranged and set
in the 14
th
and 15
th
of December 2021 was null and void. This means that the status of the
applicant is as if he was never dismissed, or his services
have never
been terminated.”
This
decision was not in anyway challenged by the respondents. For it is
well settled in our law that until a decision is set aside
by a court
in proceedings for judicial review it exists in fact and it has legal
consequences that cannot simply be overlooked.
[16]
The respondents were reckless in and contemptuous by paying no heed
to that decision. The respondents showed no intention of wanting
to
comply with the ruling aforesaid. They treated it with disdain.
[63]
There is a higher duty on the state organ to respect the law and to
tread respectfully when dealing
with rights.
[17]
Respondents’ conduct is an antithesis to this high duty.
[64]
Where the legality of their actions is at stake, it is crucial for
public servants to neither
be coy nor to play fast and loose with the
truth. On the contrary, it is their duty to take the court into their
confidence and
fully explain the facts so that an informed decision
can be taken. Our present Constitutional order imposes a duty upon
state officials
not to frustrate the enforcement by courts of the
legal rights.
[18]
I have no
doubt in my mind that the respondents frustrated the enforcement of
applicant’s contractual rights.
[65] The second respondent frustrated
the applicant by not availing himself to the applicant and his legal
representatives for resolution
of this matter. A subsequent alleged
letter allegedly instructing the applicant to wait for 10 days
without going to work is unclear
as to the purpose for which the
applicant would wait. Respondents’ opposing papers are devoid
of any explanation as to their
failure to assist the applicant,
especially in the light of a ruling of the Bargaining council. It is
therefore easy for me to
come to a conclusion that the respondents
have dismally failed to take this court into their confidence.
Order
[66] In the result I make the
following order:
66.1 The applicant is hereby granted
leave to bring this application by way of urgency in accordance with
the provisions of Rule
6(12) of the Uniform Rules.
66.2 The respondents are ordered to
forthwith pay applicant’s salary and associated emoluments for
the Month of July 2024
into the applicant’s bank account,
details of which are the following:
Account
Holder
:
Phendule Mbewu
Bank
:
First National Bank
Account
Number
:
6[...]
Branch
:
Mthatha
Branch
Code
:
250655
Account
Type
:
Cheque
65.3 The respondents are ordered to
forthwith remove the key block fitted in applicant’s office
door,
to wit
, Office No. F-02, First Floor Prosperity Building
and allow the applicant access into the aforesaid office in every
manner possible.
65.4 The respondents are hereby
interdicted from further unlawfully withholding applicant’s
salary and associated emoluments.
65.5 The respondents are hereby
interdicted from further placing a key block to the applicant’s
office door without prior
consultation with applicant.
65.6 The first respondent is hereby
ordered to pay costs of this application on a scale as between an
attorney and client.
Zono AJ
Acting Judge of the High Court
APPEARANCES:
For
the applicant
:
Adv SST. MAPEKULA
Instructed
by
:
M NZIMA ATTORNEYS
No
47 Cumberland Road
Mthatha
Cell
No: 072 130 4772
TEL:
047 1109 120
E-mail
:
brnzima@gmail.com
Ref
: Mr Nzima
For
the Respondents
:
Adv DV KROON SC with Adv METU
Instructed
by
:
NOSINDWA ATTORNEYS
23
Delville Road
Mthatha
Tel:
047 531 4429
[1]
The
disciplinary enquiry of the applicant that was arranged and set down
on the 14
th
and 15
th
of December 2021 was null and void. This means that the status of
the applicant is as if he was never dismissed or his services
have
never been terminated.
[2]
Director
of Hospital Services v Mistry
1979 (1) SA 625
(A) at 635 H-636A;
Nkume
v Transunion Credit Bureau and another
2014 (1) SA 134
(ECM) Para 7
[3]
Estate
Agents Board v Lek
1979 (3) SA 1049
at 1063F
[4]
Gcaba
v Minister for Safety and Security and others
2010 (12) SA 238
(CC) Para 75
[5]
Director
of Hospital Services v Mistry
1979 (1) SA 626
A at 628H-636A
[6]
Titty’s
Bar and Bottle Store (Pty) v ABC Garage (Pty) Ltd
1974 (4) SA 362
(T) at 639
[7]
Zokufa
v Compuscan (Credit Bureau)
2011 (1) SA 272
(ECM) Para 33-34
[8]
Section
77(3) of
Basic Conditions of Employment Act 75 of 1997
[9]
Makhanya
v University of Zululand
2010 (1) 62 SCA Para 59 and 79 and many other paragraphs in the
Judgment
[10]
Section
157(2)
(a) of
Labour Relations Act 66 of 1995
[11]
Makhanya
v University of Zululand
2010 (1) SA 62
SCA Para 18 and 24
[12]
Masemola
v Special Pension Appeal Board and another
2020 (2) SA (1) (CC) Para 51
[13]
Minister
of Interior v Harris
1952 (4) SA 769
A at 780H-781B
[14]
Ashby
v White
[1790] ENGR
55
;
[1703] 92 ER 126
at 136
[15]
Setlogelo
v Setlogelo
1914
AD 221
at 227
[16]
Oudekraal
Estates (Pty)Ltd v City of Cape Town and Others
2004
(6) SA 222
Para 26;
South
African Broadcasting Corporation SOC Ltd and Another v Democratic
Alliance and Others
2016 (2) SA 522
(SCA) Para 45
[17]
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
2014 (3) SA 481
(CC) Para 82;
Magqazana
v Buffalo City Metropolitan, Municipality and another
(RC 1386/2023) [2024] ZAECLLC 7 (5 March 2024) Para 44
[18]
Kalil
NO and others Mangaung Metropolitan Municipality and others
2014 (5) SA 123
(SCA),
2014 (3) ALL SA 291
SCA Para 30