Vryheid Transitional Local Authority v Biyela (DA2/2000) [2002] ZALAC 5 (28 March 2002)

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[2002] ZALAC 5
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Vryheid Transitional Local Authority v Biyela (DA2/2000) [2002] ZALAC 5 (28 March 2002)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO: DA2/2000
In
the matter between:
VRYHEID
TRANSITIONAL LOCAL AUTHORITY
Appellant
and
SIBUSISO
VINCENT BIYELA
Respondent
JUDGMENT:
VAN REENEN AJA:
[1] This is an appeal
against an order in an application brought in terms of section 46(9)
of the Labour Relations Act, No 28 of 1956
(the Labour Relations
Act), declaring the dismissal of the respondent invalid and ordering
the reinstatement of the respondent retroactive
l
y to the date
of his dismissal on terms not less favourable than those that
governed his conditions employment prior to his dismissal.
[2] The
appellant came into existence on 14 March 1995, as a result of the
amalgamation of the Town Council for the Borough of Vryheid,
the
Bhekuzulu Town Committee and the Town Council of eMondlo.
[3] Such
amalgamation came about as a result of the exercise by the Minister
of Local Government and Housing of the province of Kwazulu-Natal
of
the powers vested in him by section 10, read with the proviso to
section 7(2)(b), of the Local Government Transition Act, No 209
of
1993 (the
Local Government Transition Act) and
promulgated in the
Provincial Gazette of KwaZulu-Natal, No LG95, 1995 on 14 March 1994
(the Proclamation).
[4] The respondent was as
from February 1992 employed as chief executive officer/town clerk of
the Bhekuzulu Town Committee.
[5] The Black Local
Authorities Staff Regulations (the staff regulations), promulgated
on 25 November 1983 in Government Gazette
No 8980 as regulation 2568,
pursuant to the powers vested in the then Minister of Co-operation
and Development by section 56(1) of
the Black Local Authorities Act,
No 102 of 1982 (the Black Local Authorities Act), were “statutorily
injected” (per Hoexter
JA in
Administrator Transvaal and Others
v Zenzile and Others
1991(1) SA 21 (AD) at 34 G) into the
contractual relationship between the Bhekuzulu Town Council and the
respondent and placed it
apart from an ordinary contract of
employment (See:
Zenzile’s
case at 35 B – C).
[6] As a result of the
repeal of the Black Local Authorities Act by
section 13
of the
Local
Government Transition Act No 209 of 1993
, with effect from 2
February 1994, and absent any statutory provisions that ensured their
preservation, the staff regulations lost
their statutory force (See:
Hatch v Koopoomal
1936 AD 190
at 197;
R v Madine
1961(3) SA 29 (AD) at 30 H – 31 A), but continued to remain an
integral part of the contractual relationship between the Bhekuzulu
Town Council and the respondent (Cf: Section 12(2)(c) of the
Interpretation Act, No 33 of 1957).
[7] In
terms of section 6(1) of the proclamation all the staff of the
Bhekuzulu Town Council, including the respondent, were transferred
to
and appointed to the service of the appellant with effect from 14
March 1995.
[8] Paragraph
8 of the proclamation provides as follows -
“
(2) The town clerks, town
treasurer, medical officer of health and heads of departments of the
dissolved local government bodies shall
retain the service benefits
pertaining to their posts with such local government bodies until
such service benefits are changed in
accordance with a proclamation
as envisaged in paragraph 7(1).
(The “proclamation as
envisaged in paragraph 7(1)” is one in terms of sub-sections
10(3)(f)(i) and 10(3)(j) of the
Local Government Transition Act.)
The terms and conditions of
employment of the officials referred to in sub-paragraphs (1) and
(2) may be changed by the Council
to conditions no less favourable
than under which they serve and in accordance with the applicable
labour law.”
[9] Paragraph 9(a) of the
proclamation provides that
“the assets,
liabilities, rights and obligations of the local government bodies
are hereby transferred to the council”.
It is
apparent therefrom, as well as the provisions of paragraphs 8(2) and
(3) of the proclamation, that the terms of the contractual
relationship between the appellant and the respondent are identical
to those that previously existed between the Bhekuzulu Town Council
and the respondent.
[10] Staff
regulation
12(1)
provided that any employee guilty of any of the acts of
misconduct enumerated therein, shall be dealt with in accordance with
staff
regulation 13
which, inter alia, provided that -
if in the opinion of the
local authority grounds exist for suspecting that an employee is
guilty of misconduct it shall appoint
a committee consisting of
three members from the ranks of the members of such local authority
and of its employees, to investigate
such suspicion, and nominate
one of the members of the committee to be chairman (staff
regulation 13(1)).
the local authority
shall appoint a prosecutor to attend the enquiry and adduce evidence
and arguments in support of the allegations
of, inter alia, such
misconduct and cross-examine any person who has given evidence to
refute such allegations (staff
regulation 13(10)).
if the committee finds
that the employee concerned is, inter alia, guilty of misconduct,
such employee may, within 14 days after
the date on which he or she
is informed of the finding, appeal against such a finding to the
local authority concerned by giving
a written notice of appeal
setting out fully the grounds upon which the appeal is based (staff
regulation 13(17)).
If the committee finds
that an employee is guilty of misconduct the chairman of the
committee shall as soon as possible after the
finalization of the
inquiry forward to the local authority (i) any documentary evidence
admitted thereat; (ii) a written statement
of the committee’s
findings and its reasons therefor; and (iii) any observations on
the inquiry that the committee desires
to make; and iv) in the
event of there being a minority finding, the particular member’s
reasons therefor and any remarks
in regard to the inquiry that such
member wishes to make (staff
regulation 13(18)(a)).
The local authority
concerned, excluding any of its members that were members of the
committee, shall consider the record and documents
submitted to it
by the committee and may uphold the appeal wholly or in part, or
alter the finding or dismiss the appeal, and confirm
the finding
wholly or in part, or may, before arriving at a final decision,
remit any question in connection with the inquiry to
the committee
and direct it to report thereon or hold a further inquiry and arrive
at a finding thereon (staff
regulation 13(21)).
If a disciplinary
committee has found that an employee is guilty of misconduct as
charged, and if such employee has not appealed
against the findings,
or has appealed but his or her appeal has been dismissed, the local
authority concerned may –
decide to take no
further steps in the case;
caution or reprimand
such employee;
impose a fine not
exceeding R200 upon such employee, which fine may be recovered by
deduction from his or her emoluments in such
instalments as the
local authority may determine;
reduce such employee’s
salary or grading or both his or her salary and his or her grading
to such extent as the local authority
may determine or withhold his
or her salary increment for a period not exceeding 12 months;
discharge such employee,
or call upon him or her to resign from the service of the local
authority from such date as the local
authority may determine.
[11] The Executive
Management Committee of the appellant on 10 July 1995 resolved to
recommend to the appellant that:
“
4. Powers be delegated to the Town
Clerk to act on Council’s behalf with regard to the Black Local
Authorities staff Regulations
of 25 November 1983 as amended;
Mr SV Biyela be suspended with full
pay due to alleged misconduct with immediate effect and he not be
permitted to have any communication
and/or contact with any
municipal officials during normal working hours or enter any
municipal building in his office capacity
without prior instruction
from the Town
Clerk, the Town Secretary or the
Provincial Committee of Enquiry;”
[12] The appellant at an
ordinary monthly meeting held on 31 July 1995, resolved that
“the
minutes of the meeting of the
Executive
Management Committee held on 10 July 1995 be
confirmed and approved”.
[13] Mr G Olckers, the
chief executive officer/town clerk of the appellant, pursuant to the
powers delegated to him as aforementioned,
appointed Mr Abraham
Jacobus Steyn Ackerman (the then head of the personnel section), Mr
M. Dickason (the deputy town treasurer)
and Mr C. Louwrens (the
deputy borough engineer) as a committee to deal with all disciplinary
hearings involving the appellant’s
employees under the chairmanship
of Mr Ackerman.
[14] The appellant,
during the latter part of 1994, appointed an appeals committee for
disciplinary matters, chaired by one of its
councillors Me Gezina
Jacobs Steenkamp. The other three members of the committee were
councillors P. Friend, I.A. Mulla and S. Pieters.
[15] After a number of
postponements, the disciplinary committee covened on 28 September
1995, to investigate the following allegations
of misconduct against
the respondent –
“
1. That in contravention of section
12(1)(b) of the Black Local Authority Staff Regulations, published
under Government Notice 2568,
on 25 November 1983, as amended,
(hereinafter referred to as the Staff Regulations) you on or about 22
march 1995 purported to be
authorised to institute legal proceedings
against inter alia the Minister of Local Government and Housing, and
the Vryheid Transitional
Local Council to prevent the proclamation of
the Vryheid Transitional Local Council; and/or
That in contravention of section
12(1)(r) of the aforementioned Staff Regulations, on or about 16
April 1995, in order to cause
prejudice or injury to a person in the
employ of the Transitional Local Council, to wit the Chief
Executive/Town clerk, mr G OLCKERS,
made a false statement by laying
a criminal charge of housebreaking and theft against the
aforementioned official;
and/or
That you unlawfully and/or in
contravention of the financial regulations for Black Local
Government 1983, as amended, on or about
17 March 1995 removed an
amount of R2 840,00 from the cash register in the Bhekuzulu
Municipal Offices for private use.
[16] The respondent’s
legal representative at the commencement of the inquiry raised an
objection to the legality of the manner
in which the disciplinary
committee had been constituted. After the objection had been
dismissed the respondent and his legal representative
withdrew from
the proceedings and took no further part therein.
[17] The disciplinary
committee, after it had heard the evidence of a number of witnesses,
found the respondent guilty of all three
charges of misconduct. The
evidence was that all that was conveyed to the appeals committee was
the findings of the disciplinary
committee.
[18] The Respondent
timeously delivered a notice of appeal in accordance with the
provisions of staff regulation 13(17).
[19] The appeals
committee listened to the mechanically recorded proceedings of the
disciplinary committee, and on 3 November 1995,
resolved that the
respondent had correctly been found guilty and requested him to
“submit in writing not later than 12:00 on 10
November 1995 mitigating circumstances”
after
which sentence would be passed and advised him thereof by letter.
The respondent did not
avail himself of the opportunity to make any submissions in
mitigation.
[20] When the appeals
committee reconvened on 10 November 1995, the respondent failed to
make any submissions in mitigation or to
put in an appearance. The
appeals committee’s reaction to such failure is articulated as
follows by Mrs Steenkamp:
“…
we had no option, because we
took it that he absconded, and we had no other option than to
terminate his services immediately.”
The conclusion that the
respondent had absconded was clearly misguided as in terms of the
provisions of staff regulation 13(12)(c)
there was no obligation on
him to attend the inquiry personally or through a representative.
[21] The chief executive
officer/town clerk of the appellant on 3 October 1998, addressed a
letter in the following terms to the respondent:
“
Dear Sir
TERMINATION
OF SERVICES
I
have to advise that the Appeal Committee at its meeting held on 10
November 1995 resolved that your services be terminated with
immediate effect.
Your
severance pay which will include two weeks pay in lieu of notice as
determined by the Basic Conditions of Service Act, will be
paid into
your banking account.”
[22] The respondent was
of the view that his dismissal constituted an unfair labour practice
within the meaning of section 1 of the
Labour Relations Act, and as
conciliation failed to yield a settlement of the dispute, the
respondent in terms of section 46(9) of
the said act, referred it to
the Industrial Court for determination.
[23] By agreement between
the legal representatives of the appellant and the respondent the
only issues to be determined by the Industrial
Court were firstly,
whether the admitted non-compliance by the respondent with the
provisions of the staff regulations relating to
the institution of
disciplinary proceedings against the respondent and secondly, whether
the constitution of the disciplinary- and
appeals committees,
rendered the respondent’s dismissal invalid as opposed to
procedurally unfair.
[24] The court
a quo
was not alerted to the fact that the Black Local Authorities Act had
been repealed and, without having considered the impact thereof
on
the regulations that were promulgated thereunder, made the following
findings that were pivotal to the outcome of the proceedings
-
“
The dismissal of the applicant is
void. I do not consider it necessary to look into the reason for
such dismissal or to consider
whether the respondent followed a fair
procedure in effecting such dismissal. The dismissal of an employee
in circumstances where
dismissal is in contravention of statutory
provisions is void “irrespective of whether justifiable cause for
the dismissal exists
and irrespective of whether other procedures
were followed.” In this regard, see Brassey et al in The New
Labour Law: Juta (1987
at page 366).
It
is proper that the lawfulness of the dismissal in question is taken
into account as a preliminary step when fairness is considered.
I
find that the dismissal of the applicant was unlawful. This is the
end of the matter.
I
agree with Advocate De Wet’s submission that this is a court of
equity and not a court of law. However, I do not have the power
to
disregard the express provisions of a statute. The respondent as
employer had a duty to comply with duties imposed upon by such
statute and the fact that it failed to comply with such duty is
fatal.”
[25] The appeal before
this court was limited to whether the court
a quo
erred in
a) having found that the non-compliance with the provisions of the
staff regulations rendered the disciplinary proceedings
against the
respondent invalid, resulting in an unlawful dismissal and; b)
having ordered the retroactive reinstatement of the
respondent on
terms no less favourable than those that governed his employment
prior to his dismissal.
[26] The concept “local
authority” in regulation 1 of the staff regulations is defined as
“a town council or village council”,
the rights and obligations
whereof were transferred to the applicant in terms of proclamation
9(1)(b), so that a) the opinion
that reasonable grounds existed
for suspecting that the respondent was guilty of misconduct had to be
formed by the appellant (staff
regulation 13(1); b) the
appellant had to appoint the disciplinary committee, at least one
incumbent whereof had to come from
the ranks of its members (staff
regulation 13(1)); c) the appellant had to function as an appeal
tribunal (staff regulation
13(21)); and d) the appellant was
empowered to consider the imposition of any of the prescribed
sanctions in the event of a finding
of guilty (staff regulation
13(25)).
[27] None of the
aforementioned powers were specifically alluded to in staff
regulation 68 which provides for the delegation by the
appellant of
its powers to an employee and accordingly, militates against the
existence of an implied entitlement on the part of
the appellant to
delegate such powers (See:
L.C. Steyn: Uitleg van Wette,
2
nd
Ed, 223).
[28] Assuming
- on the basis of a benevolent reading of the recommendations of the
Executive Management Committee that were confirmed
and approved by
the appellant on 31 July 1995 - that the appellant in fact formed
the opinion that reasonable grounds existed for
suspecting that the
respondent was guilty of misconduct, the disciplinary committee was
not appointed by the appellant but by its
chief executive
officer/town clerk who, despite the absence of expressed or implied
powers permitting it, was delegated to act on
the appellant’s
behalf “with regard to the Black Local Authorities Staff
Regulations of 25 November 1983 as amended.”
[29] The
respondent in terms of staff regulation 13(1) was entitled to have
any suspicion of misconduct on his part investigated by
a committee
of three, at least one member whereof had to be a councillor,
appointed by the appellant.
[30] The respondent, in
terms of staff regulation 13(21), was furthermore entitled to an
appeal to the appellant against the disciplinary
committee’s
finding that he was guilty of misconduct and, if unsuccessful, to
have the appellant consider and impose any of the
sanctions
prescribed by staff regulation 13(25). As already stated, the
appellant deputed those functions to a committee consisting
of only
four of its members.
[31] The delegation by
the appellant to its chief executive officer/town clerk of its powers
with regard to the “Black Local Authorities
Staff Regulations of 25
November 1983” and the devolution by the appellant to a committee
consisting of four of its members of
its appeal and sentencing
functions, amounted to a relaxation of the stringent requirements of
the staff regulations as regards disciplinary
proceedings and to that
extent, in my view, constituted a diminution of the respondent’s
conditions of service, in direct conflict
with the express provisions
of subordinate legislation, namely, proclamation 8(2) and (3) and
rendered the respondent’s dismissal
null and void (See:
S.A.
Diamond Workers’ Union v The Master Diamond Cutters’
Association of SA
1983(3) ILJ 87 (1C) at 138 A – 139 A;
Brassey et al: The New Labour Law
(Juta 1989) 366). There
also is ample authority for the proposition that any decision of a
disciplinary body, consisting of less
than the prescribed number of
incumbents, is a nullity (See:
Ras v Behari Lal and Others v
The King Emperor
150 LTR 3
,
R v Silber
1940 AD 187
;
R v Price
1955(1) SA 219 (A);
Schoultz v Personeel
Advies-Komitee Munisipaliteit George
1983(4) SA 689 (C) at 710 B
– 711 B).
[32] In
view of the aforegoing I am of the opinion that the termination on 10
November 1995, of the respondent’s services with immediate
effect,
was invalid and did not bring about an end to the employer/employee
relationship between the appellant and the respondent.
Accordingly,
the purported dismissal of the respondent, in my view, constituted an
unfair labour practice and the Industrial Court
correctly exercised
the powers bestowed upon it by subsection 46(9)(c) of the Labour
Relations Act, when it ordered the retroactive
reinstatement of the
respondent.
[33] In
terms of item 5 of the resolution of the Executive Management
Committee of the Appellant on 10 July 1995, the respondent was,
inter
alia, suspended on full pay pending the disciplinary inquiry. As in
terms of staff regulation 68 thát function was capable
of being
delegated by the appellant, such suspension is unaffected by the
outcome of this appeal.
[34] In
my view, the appeal should be dismissed with costs.
___________________
D.
VAN REENEN
ACTING
JUDGE OF APPEAL
I agree. The appeal is
dismissed with costs.
___________
RMM ZONDO
JUDGE PRESIDENT
I agree.
________________
M.T.R. MOGOENG
JUDGE OF APPEAL
Appearances:
For
the Appellant:
Adv
A. de Wet instructed by Cox & Partners, Vryheid.
For
the Respondent:
Adv
V. Soni instructed by Ngwenya & Zwane, Empangeni.
Date
of Hearing: 22 November 2001
Date of Judgment: 28
March 2002