Heyneke v Umhlatuze Municipality (D908/09) [2010] ZALCD 8 (24 March 2010)

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[2010] ZALCD 8
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Heyneke v Umhlatuze Municipality (D908/09) [2010] ZALCD 8 (24 March 2010)

IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO:
D908/09
HEARD:
11
MARCH 2010
FURTHER
SUMISSIONS
:
18 March 2010
DELIVERED:
24 MARCH 2010
EDITED:
5 MAY 2010
In
the matter between
ANTONIE
WILLEM
HEYNEKE

APPLICANT
and
UMHLATUZE
MUNICIPALITY

RESPONDENT
JUDGMENT
Introduction
1.
This
case typifies how not to conduct investigations and discipline. It is
yet another instance in which a public employer has put
one of its
senior managers off work on full pay
[1]
for a protracted period pending investigation. Many such cases do not
endure the scrutiny of courts often because public employers
pay
generous amounts to settle disputes.
[2]
This case challenges the legality of special leave on full pay for a
protracted period.
The
Parties and the Evidence
2.
The applicant employee is the Municipal
Manager of the respondent.  The respondent is Umhlatuze
Municipality, a municipality
established in terms of the Local
Government Municipal Structures Act 117 of 1998 (the MSA 1998).
Its principal place of
business is in Richards Bay.  Although
the court refers to the respondent as “the municipality”,
it does so guardedly.
3.
The
municipality consists of its political structures and
administration.
[3]
Political
structures include the council of a municipality, committees and
collective structures established in terms of the MSA
1998.
[4]
A council consists of elected representatives of political
parties.
[5]
As a result of the
system of proportional representation
[6]
the council has representatives from the African National Congress
(ANC), the Democratic Alliance (DA), the Freedom Front (FF)
and the
Inkatha Freedom Party (IFP). The employee heads the
administration.
[7]
4.
The council of the municipality is divided
along party lines about the treatment of the employee.  The
majority in the council,
represented mainly by the ANC aligned Chief
Whip, Councillor M V Gumbi, and the Speaker Elphas Felokwakhe Mbatha,
are
the principal protagonists against the employee.  Within the
administration, the Corporate Services Manager, Ms M T B Ndlovu,
and
the current Acting Municipal Manager, Mr N P Nhleko, who also
holds the position of Deputy Municipal Manager, are antagonistic

towards the employee.
5.
Where
Mayor A Z Mnqayi stands is contested.  The employee alleges that
the Mayor and the Speaker are from “warring factions”.
[8]
The Speaker denies this.
[9]
He
contends that he and the Mayor are from the same political party and
the Mayor has been “part and parcel of the resolutions”.
6.
Oddly,
however, the Mayor delivers no affidavit in opposition to this
application. He is by definition the employer.
[10]
The contract of employment is between the employee and the former
Mayor as representative of the municipality. In terms of the

regulations
[11]
the Mayor may
grant the employee special leave.  The regulations also entitle
the Mayor to terminate the employee’s
services.
[12]
Although the contract calls for prior council approval of
examinations and conferences, it is silent on who may grant the
employee
special leave to attend such events. Consequently, the
regulations apply. In terms of the regulations, read with the
contract and
the MSA 2000,
[13]
the Mayor is responsible for the employment of a municipal manager.
As such he should have put the employee on special. He should
also be
testifying in this application.
7.
Furthermore,
chapters 7 and 8 of the Municipal Finance Management Act No 56 of
2003 (MFMA) impose particular responsibilities on
mayors and
accounting officers. Even though the employee is accountable to the
Mayor and to the council,
[14]
section 52(b) requires the Mayor, not the Speaker, to monitor and
oversee the employee, and to do so without interfering in the

employee’s exercise of his responsibilities.
8.
The
MSA 2000 is also at pains to demarcate the council from the
administration of municipalities.
[15]
To that end it prescribes separate codes of conduct for
councillors
[16]
and for
municipal staff
[17]
.
Significantly, the code for councillors prohibits them from
interfering in the management or administration of any
department of
the municipality unless mandated by council.
[18]
9.
For
reasons that the Speaker chooses not to disclose to the court, he and
the Chief Whip interfere in the management of the municipality.

Without evidence from the Mayor, the court cannot accept the
Speaker’s evidence that the Mayor supports the decision to
place the employee on special leave. He attaches an extract from the
minutes of the council meeting of 3 February 2010
[19]
as proof. The extract  is
prima
facie
proof of nothing more than the fact that the Mayor attended the
meeting at which the council resolved to charge the employee.
Significantly, the Speaker does not testify that the Mayor was one of
the councillors who voted to put the employee on special leave.
10.
The
Speaker acknowledges that there may have been “internal
squabbles” between the employee and senior managers.
[20]
Irrespective of whether the conflict is pitched as high as “warring
factions” or as low as “internal squabbles”
it is
common cause that there is conflict within the municipality, the
difference of opinion being only one of degree. In these

circumstances to refer to the municipality as a homogenous, unified
whole is a misnomer. Hence the court’s qualified use
of the
term “municipality” in referring to the respondent.
11.
Another consequence of the conflict is that
it could impair the reliability of the evidence, located as it is in
the context of
a political milieu. The propensity for mendacity to
serve party political or even shameless self interest cannot be
discounted.
12.
Surprisingly and unhelpfully, the Speaker
is the only deponent for the entire municipality. On some issues the
Mayor and the Chief
Whip would have been better qualified to testify.
The Speaker is also a protagonist in the conflict.
13.
The minority parties support the employee.
They resisted the motion to put him on special leave. That the
employee might be
sympathetic or politically aligned to some or all
of the minorities can also not be discounted. He could also be in an
unhealthy
alliance with the Mayor.
14.
In
this context the court has to tread carefully through the evidence,
to look beyond the given to what might actually be.
The
Facts
15.
The employee is contracted to the municipality from October 2006 to
September 2011.  As its Municipal Manager he currently
earns
about R70 000 per month.
[21]
16. On
23 September 2009 the Chief Whip wrote to the council of the
municipality requesting that it resolve to place the employee
on paid
leave pending an investigation into causes of a cash crisis and other
concerns at the municipality.
[22]
After the Speaker consulted him he agreed to being placed on paid
special leave on the understanding that it would be for a short

period.
17.
The special leave resolution did not enjoy a smooth passage.
Councillors Harvey, Kubone, van Zyl, Viljoen and Hastings
opposed the
resolution on procedural and substantive grounds.  Van Zyl and
Viljoen protested that the motion was “a
political plot”
and that “political structures were interfering in the
administration of the municipality” by
removing the employee,
“an efficient manager” and “a man of impeccable
repute” who loyally owed the council
10 years.
[23]
18.
When the Speaker put the matter to a vote, the DA and the IFP refused
to be party to the decision. Twenty-eight councillors
left the
meeting. The local newspaper reported it as a “storming out”
and “walk out” of the council meeting.
[24]
Thirty-one councillors remained to vote in favour of the
resolution.
[25]
19. At
the same meeting, the council reviewed and declared unlawful and
invalid two decisions of the employee, namely to appoint
the human
resources and administrative managers because he allegedly exceeded
his authority as he had delegated the power to appoint
to the Deputy
City Manager.
20.
Notwithstanding the allegedly unlawful and invalid appointment by the
employee the municipality did not charge the employee
for misconduct
immediately. Instead, it put him on special leave but persists that
the special leave was unrelated to charges of
misconduct against
him.  The Speaker even criticised the employee for conflating
the subsequent disciplinary procedure with
the special leave. The two
were “separate and distinct” he persisted.
[26]
21.
The meeting was a special meeting called specifically to pass these
three resolutions.
[27]
It started at 17.10 and ended 30 minutes later at 17.40.
The
Employee’s Case
22.
Ms
Nel
submitted
for the employee that the special leave is unlawful because the
municipality is abusing it as if it were a suspension
pending
discipline. The investigations underpinning the special leave also
founded misconduct charges against the employee. In
fact, a
disciplinary hearing is already underway. The special leave is
therefore tainted by the ulterior purpose of suspending
and charging
the employee for misconduct.
23.She
disputes that the employee’s agreement to be put on special
leave could ever be elevated to a contract of the kind
that varied
his conditions of service, which is the effect of the special leave.
Nor did he agree to be put on special leave that
continues for a long
time. The special leave is therefore a breach of his conditions of
employment. As an administrative act, the
municipality also did not
comply with basic principles of administrative law.
The
Municipality’s Defence
24.
The thrust of the municipality’s defence is that the employee
had consented to being placed on special leave, which is
authorised
by the MSA 2000, its regulations and the municipality’s leave
policy.
[28]
Mr Madonsela
submitted that at the time the employee was placed on special leave
the municipality had not contemplated charging
him for misconduct.
His special leave is not motivated by any purpose other than to
investigate the three issues in the special
leave resolution. To
suggest that the municipality has an ulterior purpose implies that
the municipality acts dishonestly or in
bad faith. Accordingly, the
municipality denies that it is motivated by any ulterior purpose.
Issues in Dispute
25.
The principal issue is whether the special leave is lawful.  The
employee seeks a declarator and reinstatement.  To
get to those
outcomes, however, the court has to make findings along the way on
the lawfulness of the special leave, whether the
employee agreed to
be put on special leave pending investigations and the legality of
the special leave, given the challenge to
the motives underpinning
it. Liability for costs also has to be carefully determined,
especially as public funds are involved.
Challenges to urgency and
jurisdiction fell away by the time the court delivered its
judgment.
[29]
The
Law on Special Leave
26.
Under the common law employers have no obligation to grant leave and
employees have no right to leave.
[30]
The right to leave arises from international law, in particular, the
paid leave conventions
of the ILO,
[31]
legislation and agreement.  The Basic Conditions of Employment
Act 75 of 1997 (BCEA) prescribes annual, sick, maternity and
family
responsibility leave.  Special leave is not prescribed in the
BCEA. Individual and collective agreements and other
legislation
regulating employment usually cater for this deficiency in the BCEA.
27.
The
position in this case is that the employee’s contract of
employment must be read in combination
[32]
with legislation and regulations.
[33]
In terms of his contract of employment special leave granted to the
employee is always at his instance or with his consent.
[34]
The agreement limits the amount of leave the employer may
grant, not only to prune the employee’s expectation
of the
amount of special leave on full pay he is entitled to, but also to
protect public interest.
28.
Regulation 15 of the Local Government
Municipal Performance Regulations for Municipal Managers and Managers
Directly Accountable
to Municipal Managers, 2006 deals with leave.
Sub-regulation 1 to 5 couch leave in the terminology of an
entitlement to,
and not an imposition on the employee.
Sub-regulation 6 deals with special leave as follows:
“
The
employer may grant the employee special leave with or without pay for
a reasonable number of days with approval in terms of
the relevant
special leave policy of the municipality.”
29.
This terminology is in the form of a
privilege (“with approval”) actionable at the employee’s
instance. The word
“grant” presupposes a request from the
employee. Sub-section 6 also prunes the privilege to “a
reasonable”
number of days.
30.
As regards the municipality’s policy
on special leave, paragraph 12.5reads:
“
Special
leave may be granted to an employee under exceptional circumstances
for any purposes not provided for in this policy and
for such period
and such conditions as the council may prescribe by resolution.”
[35]
31.
The policy reaffirms that leave is “granted
to” and not “issued against” or imposed upon
employees. The
council may “prescribe” the period and
conditions of special leave but not the special leave itself. Like
the employment
contract and the regulations, the policy limits the
period and the conditions curb employees’ expectations and the
cost of
granting special leave.
32.
In order to interpret what “exceptional
circumstances” are in the context, the court takes its cue from
the other purposes
for which the policy provides special leave to
conclude that every purpose has to be for the benefit or privilege of
employees.
“(E)xceptional circumstances” must therefore
mean such extraordinary, unusual, special circumstances that
necessitate
employees being put off work for their own good; and if a
condition of such leave is that employees be paid, the circumstances
have to be particularly exceptional.
33.
Special leave that is imposed on employees
is effectively a suspension in the hope of subverting the residual
unfair labour practice
provisions of the Labour Relations Act No. 66
of 1995 (LRA) and all the time and other constraints that accompany
suspensions.
34.
To discharge its onus of proving the
fairness and lawfulness of the special leave the municipality has to
show that the special
leave was at all times at the instance of the
employee and with his consent, that it was not imposed on him, that
exceptional circumstances
existed and that the special leave
resolution was adopted in good faith, and that it was rational,
reasonable, proportionate and
in the public interest.
Consent
to Special Leave?
35.
As
indicated above, the idea to place the employee on special leave
originated amongst the councillors, in particular the Chief
Whip. The
Speaker invited the employee to comment on the proposal.
Whatever discussion ensued between the Speaker and the
employee
resulted in the employee acquiescing to be put on special leave.
Knowing that decisions giving rise to the cash
crisis due to the land
sales did not involve him but various committees on which he did not
serve, he had “no problems”
and “no objection”
to being put on special leave.
[36]
Nor did the Nexus Forensic Services Report (Nexus report)
[37]
implicate him in any wrong doing.
[38]
36.
Neither the Speaker nor any of the councillors could reasonably have
believed that the employee’s memorandum to the special
meeting
agreeing to be put on special leave amounted to an immutable binding
contract with the municipality of the kind that if
he attempted to
terminate his special leave the municipality could hold him in
breach.
37.
As special leave can only be at the instance of the employee or with
his consent, enabling special leave at the instance of
the
municipality would amount to a variation of his employment contract.
To acquire binding force regulation 19 requires
such variation to be
in writing and signed by both parties.
[39]
Without such variation, the court finds that the employee merely
acquiesced to being put on special leave for such a short period
that
it had no impact on his contract of employment.  At most his
acquiescence amounted to an indulgence, right or privilege
to the
municipality to initiate special leave.
[40]
In terms of regulation 20, such indulgence does not constitute a
waiver of his rights, nor does it preclude him from enforcing
strict
compliance with the terms of the employment contract.
Regulations 19 and 20 are incorporated into the contract.
[41]
38.
If the councillors believed that the basis of the special leave
resolution was the employee’s agreement to be put on leave,
the
short answer to the objections from the minority parties in the
council would have been that the employee had agreed to being
put on
special leave. In passing the resolution the council did not rely on
an agreement with the employee.
[42]
39.
Subsequently in correspondence
[43]
the municipality referred to an “undertaking” by the
employee. Treating his acquiescence as an “undertaking”
[44]
conflicts with the concept of leave as being a right or privilege
exercisable or not exercisable at the instance of the employee.
40.
In the circumstances, the court finds that the high water mark of any
agreement to be put on special leave was the employee’s

acquiescence to be placed on such leave for a short time.  He
withdrew such acquiescence the moment he asked to return to
work.
After the employee launched this application the municipality could
have had no doubt about his unwillingness to remain
on special
leave.
41.
Without any request from the employee for special leave and without
his consent to remain on special leave, the special leave
is not
authorised by legislation, the contract of employment or the policy.
As such, the special leave is a breach of the employment
contract.
42.
As the employee pleads that the special leave is being used for an
ulterior purpose or ulterior motive, the principle of legality
is
also implicated.
The
Stated Purpose of the Special Leave
43.
The municipality’s stated
purpose of the special leave is determinable from the common cause
facts and the Speaker’s
affidavits.  The Speaker narrates
the circumstances leading to the council’s resolution to put
the employee on special
leave. His version is that the Nexus report
unravelled corruption within the municipality.  The employee did
not table the
Nexus report to the full council, but reported orally
to the executive committee of the municipality (EXCO) and the
Speaker.
44.
The Speaker instructed an official, Mrs Pienaar, to table the
Nexus report before the Standing Committee on Public Accounts

(SCOPA). The employee countermanded this instruction. He became
intransigent. The Speaker took umbrage.
[45]
The “discreet fashion” in which the employee dealt with
what were in the Speaker’s opinion, very serious
financial
affairs or corrupt practices unravelled by the Nexus report “simply
caused a great deal of discomfort”.
[46]
Although the Speaker does not disclose who experienced such
discomfort, the court must assume that he must be attesting to his

own discomfort.
45.
On 4 August 2009 the employee approached the council with
what was in the Speaker’s view “a most startling
verbal
request”
[47]
for
approval of a loan of R100 million to rescue the municipality.
The council scheduled a special meeting for 11 August 2009

to discuss the request.  The employee did not attend the
meeting.  This did not augur well with the councillors, the

majority of whom allegedly “harboured considerable doubt as to
whether the employee was managing the financial affairs of
the
respondent properly”.
[48]
46.
As a result the ANC Chief Whip called for the employee to be placed
on leave while the investigations took place.
[49]
47.
In addition, the employee attempted to appoint staff when he did not
have the authority to do so, as that authority had been
delegated to
a Deputy City Manager.”
[50]
48.
On
27 November 2009 the Speaker personally lodged a complaint
against the employee on four issues discussed below.
[51]
This
complaint resulted in the disciplinary proceedings against the
employee. On these facts the Speaker contended that the
investigations
underpinning the special leave were “separate
and distinct” from the misconduct proceedings.
49.
In short, according to the Respondent’s
Opposing Affidavit the stated purpose of the special leave was to
conduct investigations
on two issues, namely, the cash crisis and the
duty to table the Nexus report. Suspending the employee pending
discipline was not
within the municipality’s contemplation at
the time, allegedly.
50.
The
Speaker’s version changes dramatically in the Respondent’s
Further Opposing Affidavit in which he is emphatic that
the purpose
of the special leave was to conduct investigations into the cash
crisis.
[52]
Ulterior
Purpose or Motive
The
Principle of Legality
51.
The
common law principle of legality demands that public power be
exercised reasonably, in good faith, in the public interest
[53]
and
not be misconstrued.
[54]
The
exercise of public power is legitimate only if it is lawful.
[55]
The
rule of law as a founding constitutional value
[56]
and an element of the principle of legality elevates legality to a
constitutional principle. As a constitutional principle, legality

governs the use of all public power. Legality is not confined to
administrative law.
[57]
Therefore,
irrespective of whether an act falls within the ambit of
administrative or labour law, the principle of legality applies.
52.
Under administrative law, section
6(2)(e)(ii) of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) subjects action taken
for an ulterior purpose or motive to
judicial review. Sections 6(2)(e)(v) and (vi) bring actions taken in
bad faith, arbitrarily
or capriciously under judicial review.
53.
Under
labour law, employment is a contract. Like all contracts it implies
good faith.
[58]
This common
law position is fortified by the constitutional right of “everyone”
to fair labour practices
[59]
and equality
[60]
.
Consequently, the duty to exhibit good faith is mutual, weighing as
much on employers as it does on employees.
54.
For
the purposes of this case therefore, diagnosing whether the acts of
the municipality fall in the realm of administrative law,
labour law
or contract law is unnecessary. In so far as a diagnosis is
necessary
,
the special leave resolution would be a matter for determination
under labour law as it arises in the context of employment.
[61]
Furthermore, putting an employee on special leave is not a matter
regulated under the LRA as an unfair labour practice but as a
review
of an act by the state as employer under section 158(1)(h)
[62]
or as a breach of contract under section 77(3) of the BCEA.  An
act of an employer does not have to be “administrative
action”
for legality to be invoked as a constitutional principle.
[63]
However, the application of the principle of legality under
administrative law over decades offers valuable lessons for the newly

recognised constitutional principle of legality. Such extension of
the principle of legality into labour law can only benefit human

rights.
55.
The authorities distinguish between
ulterior purpose and ulterior motive. Hoexter explains:
“’
Purpose’
is an objective concept, whereas ‘motive’ (especially
when coupled with the adjective ‘ulterior’)
suggests the
presence of hidden, subjective and possibly sinister aims”
56.
An
ulterior purpose exists when power given for one purpose is used for
another purpose.
[64]
The organ
must have intended the act and, if it was aware that the purpose was
not authorised, it will have acted in bad faith.
[65]
Bad faith exists if the organ claims to be acting for one purpose but
knowingly acts for another private or public interest out
of, say,
spite or ill will, or to benefit the organ or its relations.
[66]
Wiechers observes that a blatant failure to comply with a requirement
for validity to the extent that it suggests that the organ
must have
known that its act was invalid is a serious dereliction of duty.
[67]
Bad
faith, he says, can be presumed on a balance of probability if the
evidence clearly indicates that the organ not only misconceived
its
powers and misjudged the facts, but should also have realised or did
in fact realise that it was performing an invalid act.
[68]
The organ may rebut this presumption by adducing facts that place it
above suspicion.
57.
It
is easy to see then why ulterior motive and bad faith sometimes
overlap.
[69]
Actions
undertaken for ulterior purposes have always been unlawful.
[70]
58.
Elements
of ulterior motive and bad faith range from fraud, dishonesty,
arbitrariness, irrationality, a failure to apply one’s
mind,
negligence, disinterest and a failure to comply with requirements for
validity, to honest mistakes and mere stupidity,
[71]
or
perhaps even ignorance,
[72]
naiveté, inexperience, improper influence
[73]
or political pressure. The basis of the bad faith or motive is
irrelevant, its mere existence being sufficient to violate
the
principle of legality. Even an altruistic motive cannot confer
legitimacy on the exercise of public power for an unauthorised

purpose.
[74]
59.
In
most cases bad faith accompanies other grounds of review.
[75]
However,
a bad reason will not invalidate an otherwise valid act.
[76]
60.
Reasonableness
is as much an independent test for legality as it is an indicator of
motive and bad faith. It imports elements of
rationality and
proportionality.
[77]
For the
purposes of this judgment, the reasonableness test need be pitched no
higher than that no reasonable organ could have made
the decision.
[78]
61.
Rationality,
also an independent test for and a principle of legality and the rule
of law, an indicator of motive and bad faith,
is elevated to a
statutory ground in PAJA
[79]
,
which  sets the test out as follows:
“
Rationality
is connected to-
(aa)
the purpose for which it (action) was taken;
(bb)
the purpose of the empowering provision;
(cc)
the information before the administrator; or
(dd)
the reasons given for it by the
administrator”.
62.
Proportionality
is another principle for testing legality. De Ville summarises the
test thus:
[80]
a.
Is the measure suitable to achieve its aim?
b.
Is the measure necessary in that no other
less invasive measure is possible?
c.
Is the measure nevertheless an excessive
burden on the individual or disproportionate to the public interest
at stake?
63.
The
existence of an ulterior motive and bad faith is an invitation to
courts to prescribe invasive remedies to correct the invalidity,

without entrusting that task to the organ.
[81]
Standard
of Proof
64.
Employers
have a duty to ensure that their employment decisions are fair and
lawful. Consequently, they bear the burden of proving
the fairness
and lawfulness of their decisions.
[82]
Employees who challenge their employer’s decisions bear the
burden of rebuttal. Employees who allege bad faith or ulterior
motive
on the part of the employer bear the burden of proving such
allegation. By discharging this onus they also rebut the employer’s

claim that its decision is fair and lawful. However, the overall onus
of proving the lawfulness and fairness of its decisions remains
with
the employer.
65.
To determine whether the councillors and
officials in the municipality had an ulterior purpose or ulterior
motive when they placed
the employee on special leave, the court must
find that the stated purpose or motive was in fact not the true
purpose or motive
of the special leave. As the stated purpose of the
special leave was to conduct investigations, the employee will
succeed in proving
an ulterior purpose if he establishes that the
purpose of the special leave was in fact to suspend him pending
misconduct proceedings.
Effectively, he has to show that the
municipality used its power to grant special leave for a purpose not
authorised by law. That
is sufficient for the employee to rebut the
municipality’s stated reason for the special leave resolution.
It is also sufficient
to rebut the claim that the special leave
resolution was fair and lawful.
66.
If
the employee goes further to establish that the municipality was or
ought to have been aware that the special leave was unlawful,
or that
the misconduct proceedings was not an end in itself, but the means to
dismiss him, he will establish that it also had an
ulterior motive or
acted in bad faith or with some similar subversive sentiment or
reason.
[83]
67.
For the true purpose and motive of the special leave the court
analyses the stated purpose of the special leave against the
sequence
of events and seven documents
[84]
culminating in misconduct charges against the employee.
The
sequence of events
68.
On
23 September 2009 the Chief Whip submitted a motivation for the
special leave resolution. (the Chief Whip’s motivation)
[85]
69.
On
29 September 2009
[86]
the council resolved at its special meeting to put the employee on
special leave in the following terms: (the special leave resolution)
“
The
City Manager be placed on special leave with effect from
1 October 2009 until the investigation has been completed

on the cash crisis in the Umhlatuze Municipality and the fact that
the municipality council has resolved to investigate land sales
and
deviations from council policy, and further that the Municipal
Manager has resisted to report to council the contents of a
forensic
investigation by Nexus Forensic Services, fraud by employees of the
Parks Board and Recreation section.”
70.
On
13 October 2009 the Assistant Municipal Manager motivated for a
resolution from the council for an investigation to support the

special leave resolution.
71.
On 3 November 2009, the council adopted the terms of reference for
the special leave investigation,
[87]
with one significant difference.
72.
On 27 November 2009 the Speaker complained as follows:
“
(1)
Refusal to table findings of a report by Nexus Forensic Services into
fraud and corruption by staff of Parks Board and Recreation
to
council and clearly failure to action its recommendations in
contravention of section 63 of the Municipal Systems Act of

2000, a letter of refusal attached for ease of reference.  (2)
Failure to report in writing the impending shortfalls in budgeted

revenue and overspending of municipality’s budget in
contravention of section 71(a) of Municipal Management Finance

Act of 2003.  Extract of minutes of a council meeting attached.
(3) Interfering with the investigation into land sales
by giving
instructions to a staff member to make amendments to the policy while
the investigation is proceeding (e mailed
report attached).
(4) Attempting to appoint/recruit staff on 22 September 2009
without following the recruitment
policy of the municipality.”
[88]
73.
On 19 January 2010 the council resolved to charge the employee.
74.
On 17 February 2010 the municipality charged the employee with
misconduct. Counts 1 to 8 arise from his appointment of staff

purportedly because he did not have the authority. Count 9 relates to
his countermanding the Speaker’s directive to table
the Nexus
report before the council. The final count is for bringing the
council into disrepute following counts 1-9 and this application.
Reasons
before decision
75.
The
sequence of events show that the municipality decided to put the
employee on special leave before it adopted the terms of reference

for the investigation. As a general principle of the rule of law and
legality, employers should formulate reasons before they make

decisions
[89]
to guard against
arbitrary,
[90]
irrational
decisions
[91]
or contriving
reasons after the fact.
[92]
Reasons are the lynchpins upon which the reasonableness of decisions
turns; reasonableness of the exercise of power is the cornerstone
of
the principle of legality.
[93]
76.
The failure to formulate the terms of reference for the investigation
before putting the employee on special leave is a procedural

irregularity which the analysis below confirms, also results in
substantive unreasonableness and irrationality.
Failure
to Apply its Mind
77.
Manifestly, the municipality
did not apply its mind to the terms of reference for the
investigation before deciding to put the employee
on special leave.
78.
Alarmingly, the special leave resolution plus the alleged
unauthorised appointments resolutions were adopted after a mere
30 minute
discussion. Much of that time was devoted to fending
off the minority parties’ opposition to the resolution. Nowhere
is there
any evidence that the council considered or debated the
expense and consequences of putting off from work the administrative
head
of a large municipality, or indeed the lawfulness, fairness,
reasonableness and rationality of its decision. Furthermore, if the

council had been told that the special leave was unrelated to
misconduct by the employee, comprehending and rationalising the
purpose of the special leave would have been a tortuous enterprise in
the search for logic.
79.
In these circumstances and without affidavits from councillors who
supported the special leave resolution, the court cannot
determine
what went through the mind of each councillor. On the available
evidence, the probabilities are that some did not even
know or
appreciate the import of their decision. They might have voted in
favour of the resolution without understanding it, out
of party
loyalty, time or political pressures, or simply because it was the
option of least resistance. Whatever their reasons,
altruistic or
malicious, they are immaterial to the legality of the special
leave.
[94]
It
could be relevant to their motives and consequently the remedy.
However, altruistic reasons may not attract penalties, whereas
malice
could.
80.
Based on the sequence of events and the content and brevity of the
council meeting, the councillors could not have applied their
minds
properly to the special leave resolution and the reasons for the
investigations underpinning it before they put the employee
on
special leave. If they did apply their minds, they would have had
trouble reconciling the purported purpose of the special leave
with
the alleged absence of intention to discipline the employee. Given
the findings below of the interconnectedness between the
special
leave and the misconduct charges, they would or ought to have
realised then that the municipality’s decision was
at the very
least morally wrongful, even if they were unaware of the legal
niceties of special leave and breach of contract.
81.
Accordingly, the court finds that the council did not apply its mind
to the special leave resolution.
Bad
Faith
82.
The special leave resolution has more than
a whiff of an ulterior motive.  Manifestly, it is couched in the
terminology of
a precautionary suspension with full pay pending
misconduct investigations.
83.
Simultaneously with adopting the special leave resolution, the
council adopted the two alleged unauthorised appointments
resolutions.
[95]
On its own,
or considered in the context of these two resolutions, the legitimacy
of the stated purpose for putting the employee
on special leave
falters even more as the connection between the Chief Whip’s
motivation, the special leave resolution and
the contents of all the
subsequent documents fortify the ulterior motive claim.
84.
Turning to the first connection, the special leave resolution refers
to investigating “the cash crisis”. So do the
motivation
and the terms of reference for the investigation itself. The
Speaker’s complaint refers to “shortfalls in
budgeted
revenue and overspending”.  All three documents identify
“land sale(s)” as a problem.
85.
The second connection is the employee’s resistance to
disclosing the Nexus report. It surfaces in the Chief Whip’s

motivation, the special leave resolution, the terms of reference for
the investigation,
[96]
the
Speaker’s complaint
[97]
and count 9 of the charges.
[98]
86.
The
motivation for the special leave investigation expressly refers to
“resistance by the Municipal Manager to report and
table the
forensic investigation report.”
[99]
This
explicitly connects the employee to count 9 of the charges. The
significant difference between the motivation for the special
leave
investigation
[100]
and
the terms of reference for the special investigation is that the
former implicates “the Municipal Manager” whereas
the
latter waters this down to “(o)fficials”.
87.
The third connection starts with the alleged unauthorised
appointments resolution accompanying the special leave resolution,

and continues in the Speaker’s complaint and the resolution to
institute disciplinary proceedings. Although the Speaker baldly

asserts that
the
unauthorised appointments resolution is “monumentally
irrelevant” to the special leave, it forms the substance of

counts 1 to 8 of the 10 counts to the charges.
88.
The
municipality must have anticipated charging the employee for
misconduct when they put him on special leave. When the municipality

put the employee on special leave the employee’s resistance to
tabling the report before the council was well known. So was
the
Speaker’s unhappiness with the employee’s conduct.
[101]
Furthermore, the municipality was confident enough of the
unlawfulness of his staff appointments that it set them aside
forthwith
during the 30 minute meeting. Although the employee is not
charged for the cash crisis and land sales issues, the Speaker has a

“strong suspicion” that the employee was not
administering the affairs of the municipality as required by
law.
[102]
He is also
unhappy about the employee’s “interference with the
investigations” relating to the land sales.
[103]
89.
Lastly, the first three of the
Speaker’s complaints fall squarely within the scope of the
investigations for which the employee
was placed on special leave. He
testifies that the employee’s “attempt to appoint some
members of staff … amount
to serious misconduct for which he
can be charged and/or disciplined.”
90.
In these circumstances, the evidence
establishes beyond doubt the link between placing the employee on
special leave, the special
leave investigations and the charges for
misconduct that he now faces.
91.
The
special leave is a façade for suspending the employee pending
misconduct proceedings. To deny in these circumstances
that the
municipality did not contemplate charging the employee for misconduct
when it put him on special leave is false. Such
blatant falsehood
suggests that the speaker, if not the municipality, must be aware of
the moral and legal impropriety of the special
leave. By putting the
employee on special leave and persisting with it, knowing that it is
for the purpose of effectively suspending
him is bad faith.
[104]
Bad
faith transforms ulterior purpose into ulterior motive.
92.
Effectively,
the municipality used a power aimed a benefiting employees as a
weapon against the employee. It misconstrued and misused
its power
for a purpose not authorised in law, and continues to do so despite
this application alerting it to the illegality. Misuse
of power is a
reviewable illegality.
[105]
Continued misuse of power is bad faith. Bad faith and the breach of
the employee’s contract of employment automatically strip
the
special leave of legitimacy.
[106]
Reasonableness,
Rationality and Proportionality of the Special Leave
93.
No
municipality, acting reasonably, in the public interest, can put an
employee on special leave on full pay for a long time, not
even if
such employee agrees.  Such an agreement is against public
interests and public policy, for it can never be public
policy to
waste resources. Paying for services that are not rendered is
wasteful.
94.
Putting the employee on special leave on full pay pending
investigations for six months or longer is especially not reasonable

when precautionary suspension in terms of regulation 16
[107]
pending misconduct investigations is restricted to 60 days.
95.
Protracted leave or suspension on full pay
pending investigations or disciplinary action is a prevalent
practice, especially in
publicly funded entities. This practice is a
sign of weak, indecisive management that cannot diagnose problems and
find solutions
efficiently. These inefficiencies impact on both
taxpayers and shareholders alike, and not on the private pockets of
the management
of public organisations; consequently, the incentive
to finalise investigations and disciplinary procedures is weak.
This
practice has to stop.
96.
Apart from management inefficiencies
delaying processes, internal procedures such as meetings and
mandating systems of organisations
counter the expeditious dispute
resolution system envisaged in the LRA. Critics are quick to blame
the LRA for delays but closer
scrutiny in cases such as this shows
that fault lies mainly in the internal systems of organisations and
the way investigators
and managers practice labour law. In public
employment political factionalism also delays conflict resolution.
This case has all
three ingredients that typically result in
unreasonable delay.
97.
Under oath the Speaker states:
“
The
investigations contemplated between the parties are continuing. There
has been progress too.”
[108]
98.
The court does not share his optimism. On 13 October 2009 SCOPA
formulated the terms of reference for the investigations. On
3
November 2009, after another months’ salary became payable to
the employee, the council approved the terms of reference.
On 10
November 2009 the municipality reported to the provincial department
to elicit its financial assistance.  Four months
later the
provincial department has not indicated whether it supported the
investigations. The municipality charged the employee
for misconduct
only on 17 February 2010.
99.
The timeframe in which these events
occurred are unjustifiable. This municipality, which is in a cash
crisis, unreasonably incurs
the expense of six months salary at the
rate of approximately R70 000 per month without receiving any
service in return.
100.
Such
wastage could have been avoided. Controversy about tabling the Nexus
report and land sales had been going on since at least
17 October
2008,
[109]
if not before.
Why it suddenly became imperative to put the employee on special
leave on barely a day’s notice,
[110]
and before formulating the terms of reference, securing the
assistance of the provincial department and conducting an
investigation,
is not evident. Why the municipality did not apply
standard dispute resolution procedures is also not explained.
101.
As regards rationality, because the special leave is intended to
benefit employees, an employer who uses it to conduct investigations

acts irrationally.
[111]
102.
Furthermore, a bald assertion by an employer that it is conducting
investigations is not an explanation for putting employees
off work.
There has to be a rational connection between conducting the
investigation and the need for the employees’
absence from
work.  Usually it is to prevent employees from interfering with
investigations.
103.
Although the Speaker testifies that the employee interfered with
investigations relating to land sales,
[112]
he sets out no factual basis for this claim. The employee denies that
there were any investigations into land sales with which
to
interfere.
[113]
In fact, the
Speaker contradicts himself in Respondent’s Further Opposing
Affidavit.
104.
In the Respondent’s Further Opposing Affidavit the Speaker
emphasizes that the reasons for the special leave and the
purpose of
the special leave resolution is to investigate the cash crisis to
which the council was alerted for the first time on
4 August 2009. He
cites the Chief Whip’s motivation and the special leave
resolution
[114]
as
proof.
[115]
This is
manifestly false. Both documents premise the request for
investigation on not only the cash crisis but also land sales,

deviations from council policy (presumably a reference to the alleged
unauthorised staff appointments) and tabling the Nexus report
before
the council.
105.
The Speaker changes tack at this stage of the litigation because the
connection between the special leave and the charges is

unmistakeable. Only the cash crisis is omitted from the charges.
Hence by emphasising the cash crisis, the Speaker tries to distance

the special leave from the charges.
106.
The municipality gave the employee every reason not to interfere in
the investigation. It assured the employee that the investigations

were not into his conduct, a stance that the municipality maintains
throughout this application.
[116]
The Speaker assured the public via the media that “Heyneke was
not suspended or dismissed”, that the municipality was
not
“investigating his activities, but certain important
matters”
[117]
. The
Mayor publicly acknowledged that “(t)here is no indictment
against Heyneke.”
[118]
Therefore, the employee had no reason to interfere with the
investigation.
107.
Looking into the subjective state of mind of the employee, he had no
reason to interfere in the investigations also because
he knew that
he did not serve on the committees responsible for decisions that
formed a part of the special leave investigations.
He made his views
known about the Nexus report and was prepared to defend them before
an independent adjudicator, if necessary.
As section 55(1)(e) of the
MSA vests the responsibility for appointing staff in him as Municipal
Manager, delegation of that authority
did not divest him of the
responsibility.
[119]
Furthermore, section 57(2)(c) of the MSA 2000 read with the
regulations
[120]
confers on
him the role of employer of managers accountable to the municipal
manager. As he had delegated his power to appoint,
he could recall
that delegation.
[121]
108.
Another anxiety for the employee as accounting officer under section
60 of the MFMA is that his specific responsibilities for
proper
administration are entrusted to the Acting City Manager, who does not
meet the minimum prescribed requirements for the job.
[122]
The job requires the incumbent to have at least a Bachelor’s
degree; the Acting City Manager has standard nine schooling
and a
certificate in human resources.
109.
The municipality has not made out any case to justify the employee’s
absence from the workplace. Without such justification,
the special
leave disproportionately prejudices the employee and the public. This
prejudice is compounded by the reputational damage
caused by the
special leave operating as a suspension pending misconduct
proceedings. Furthermore, if the municipality had suspended
him it
would not have been able to do so beyond 60 days. Disproportionate
too is its adverse impact on the public interest as the
cost to the
municipality versus the reasons for the special leave does not
justify such expense.
[123]
Accordingly,
the special leave was unreasonable, irrational, disproportionate, and
therefore also unlawful.
The
Reasonableness, Rationality and Proportionality of the Special Leave
Investigation
110.
The need for the special
leave investigation is questionable. Equally perplexing is the
municipality’s quest for special funds
for that purpose from
the Department of Co-operative Governance and Traditional Affairs
(the provincial department). It does not
explain either in the
motivation to the provincial department, in the Opposing Affidavit or
the Respondent’s Further Opposing
Affidavit why it needs an
investigation into the cash flow problems when such investigations
fall squarely within the ambit of
the SCOPA’s ongoing
monitoring and auditing function.
111.
As regards the duty to report issues (the
Nexus report), the municipality wants to investigate questions for
which answers are common
cause, irrelevant, known or ascertainable by
standard procedures.
112.
Given its history, the disclosure of the
Nexus report remains, startlingly, the subject of an investigation a
year after the dispute
about it arose and was apparently resolved.
On 10 June 2008, the council had authorised the employee to deal with
the Nexus
report and to pursue criminal charges.  On 17 October
2008 the Speaker requested the employee to table the Nexus report.

In reply on 2 February 2009 the employee explained the steps he took
in response to the Nexus report as follows:
“
(D)ecisive
action was taken against the two main perpetrators in the
investigation and they both are no longer working for this

municipality.  The matter was also reported to the South African
Police Service with reference to these two officials and
the member
of the public who participated in the irregularity.  The amount
of money involved in this irregularity is minute
in comparison to the
expenditure of this municipality, not only in that specific year but
over many years of activities.”
113.
In
his memorandum dated 29 September 2009 to the special meeting the
employee reported again to the council that two officials who
had
been implicated in the report had resigned.
[124]
He reminded the council that it had previously resolved as follows:
“
1.
the committee noted the report of the Chief Executive Officer and
that the matter will be dealt with accordingly by his office.
2.
possibility of laying criminal charges be pursued.”
114.
Others
who were implicated in the Nexus report fell outside the
municipality’s jurisdiction because they were not its
employees.
[125]
Following
the employee’s referral of the complaint for criminal
investigations, a Captain Buthelezi from the South African
Police
Service had also reported to the council.
[126]
115.
Manifestly
therefore, in both his reply on 2 February 2009
[127]
and his memorandum dated 29 September 2009, the employee refused
unequivocally to table the report before council, giving his
reasons.  As accounting officer under section 60 of the MFMA, he
accepts responsibility for not tabling the report. If his
decision
constitutes misconduct then he is guilty. The troublesome question
for the municipality is: is it misconduct?
116.
The obvious and rational way for any
reasonable employer to answer this question is firstly to debate the
status of the report with
the employee to determine the merit of his
views.
117.
Other than being “discomforted”
by the discreet manner in which the employee dealt with the Nexus
report, the Speaker
offers no other evidence as to whether he or any
other official constructively debated the status of the report with
the employee.
Nor does he make out any case in law in these
proceedings for better disclosure of the report.
118.
If
the Speaker, in good faith, is unsure of the status of the Nexus
report, then all he requires is legal opinion, not the
investigation.
Alternatively, because the Speaker contends that
the council is entitled to the report, which the employee disputes,
the municipality
can have this dispute determined. The employee has
already offered to submit to such a determination by an independent
third party.
[128]
119.
If
the municipality is satisfied that the employee’s refusal to
table the report is misconduct, then it should have charged
him long
before they put him on special leave. No investigation on the Nexus
report is necessary. The delay in charging the employee
is as much an
indicator of the council’s ulterior motives as it is an
independent ground of judicial review.
[129]
120.
That
is not the end of the municipality’s woes in relation to the
charges against the employee. To succeed in proving misconduct

against the employee for not tabling the report, the municipality has
to explain cogently why only the Speaker and none of the
other
councillors accepted the employee’s invitation
[130]
to visit his office if they wanted full access to the Nexus report,
and why his contention that tabling of the report before council

would open the municipality to legal action is unfounded. The
municipality has to say in what respect his reports to the council

and to EXCO, and the steps he took to pursue criminal, civil and
disciplinary actions were so deficient that they warrant
investigation.
121.
The
municipality’s woes also extend to the special leave
investigation. It must motivate why the amount of money involved
in
the irregularity uncovered in the Nexus report, which the employee
describes as “minute”, would justify the expense
of an
investigation of such magnitude that provincial department
authorisation and financial assistance is needed. It must explain
why
it rejected
[131]
the
employee’s medical certificate to substantiate his absence from
the 11 August 2009 meeting to discuss the R100m loan
which he had
requested on behalf of the Chief Financial Officer, who did attend
the meeting.
[132]
122.
The municipality’s reaction to these
challenges is central to determining its motives and establishing at
least a moral high
ground in acting against the employee. The
employee questioned its motives in the Founding Affidavit. He
therefore put the municipality
on terms at the outset to tender some
explanation to successfully disprove his claim that it had an
ulterior motive. The municipality
fails to offer
prima
facie
explanations to these challenges.
123.
Another
aspect of the investigation into the Nexus report is whether the
council was adequately consulted before the Nexus report
was
commissioned.
[133]
This
question must now be academic because the municipality values the
Nexus report and has acted on it. In so far as it remains
an issue,
the answer must be within the exclusive knowledge of the
(ex)councillors and in council records.  A costly investigation

for which funds must be raised is not required.
124.
The special leave investigation is
unnecessary and therefore unreasonable.
125.
The
Acting City Manager’s request for assistance from the
provincial department and the Premier is so vague that neither can
be
expected to react rationally to it without better information. He
does not expressly ask the provincial department for financial

assistance;
[134]
he does not
state what assistance the municipality needs;
[135]
he does not conceptualise how the investigation should be conducted,
who should conduct the investigation, how long the investigation
is
likely to take and what the estimated costs of the investigation
would be. These facts are the bare minimum that the provincial

department and the Premier would require to enable them to exercise
their discretion rationally and in the public interest.
126.
The
exchanges between the municipality and the provincial department
following the request for assistance confirms that the on the

information the municipality provided the Member of the Executive
Council (MEC) had to seek “legal opinion on the adequacy
of the
request”. Furthermore, the MEC cannot make up her mind whether
to conduct an investigation under section 106 of the
MSA concerning
non-performance and maladministration, or in terms of the
KwaZulu-Natal Commissions Act No 3 of 1999.
[136]
127.
This unreasonable and irrational request
for assistance is also another cause of delay. The consequence of the
municipality’s
inability to diagnose problems and generate
solutions, its attempt to deflect or divert decision making to the
province and into
an investigation, in short, to manage, is that the
end to the special leave investigations is nowhere in sight.  Delay
in
ending the special leave is as much an indicator of an ulterior
motive as the delay in charging the employee.
128.
The bases for finding that the special
leave investigations are unreasonable and irrational also constitute
bases for holding that
the investigations are disproportionate. The
terms of reference for the investigation are contrived in an effort
to justify the
municipality’s earlier resolution to put him on
special leave, a consequence typical of putting the cart before the
horse.
The municipality has not demonstrated that the special leave
investigation is suitable, necessary, less invasive and less costly

than other procedures.  Like the special leave itself, the
investigation is disproportionate to the potential damage to the

employee’s reputation. It will also be disproportionate to the
public interest as standard procedures can achieve the purpose
of the
investigations more efficiently.
129.
Consequently,
the municipality fails to discharge the burden of proving that the
terms of reference for the special leave investigation
are
reasonable, relevant, rational and proportional.
[137]
In
turn, these findings vitiate the reason for the special leave.
Findings
130.
In summary, the court’s findings are as follows:
a. The special leave is
unlawful because the employee’s contract read with the
legislation and policy on special leave do
not allow the municipality
to impose leave on him.
b. The employee did not
agree to being put on special leave for a long time.
c. The municipality’s
stated purpose of the special leave, namely to conduct
investigations, is not the true purpose.
d. Those responsible for
the decision to put the employee on special leave have an ulterior
motive for the following reasons:
i.    The
municipality decided to put the employee on special leave pending
investigations before determining the
reasons for such
investigations.
ii.    The
municipality did not apply its mind to the special leave resolution.
iii.
The interconnectedness between the special leave and the disciplinary
proceedings evidences bad faith.
iv.    The
special leave is unreasonable, irrational and disproportionately
prejudicial to the employee and the public
interest.
v.    The
special leave investigation is unreasonable, irrational and
disproportionately prejudicial to the employee
and to the public
interest.
vi.    The
municipality delayed in ending the special leave and in charging the
employee.
e.
The ulterior motive is to discipline and probably dismiss the
employee.
131.
The employee discharges his burden of proof and rebuts the
municipality’s claim that the special leave is lawful. The

court need not enquire into other ulterior motives, such as whether
the municipality wanted to undermine the employee and the Mayor
or to
employ no Whites or Indians.
[138]
These motives, if they exist, are better resolved through mediation.
132.
The court makes no findings on the conduct of the employee. However,
the findings cast serious doubt the municipality’s
motives for
charging the employee. The illegality of the special leave
contaminates the misconduct charges, if it otherwise has
merit.
133.
The court also does not make any pronouncements on how the provincial
department should respond to the request for assistance
or whether
and how it should intervene in resolving the conflict at this
municipality.
First
Alternative Relief: Section 176(2)
Municipal Finance
Management Act 56 of 2003.
134.
Those
responsible for putting the employee on special leave and sustaining
this litigation must be held accountable for their actions.
[139]
135.
Having
found that their conduct is both unlawful and tainted by an ulterior
motive, the court turns to consider what remedy would
be
appropriate.
[140]
The
ulterior motive is underpinned bad faith. Bad faith and unlawfulness
are grounds that entitle a municipality to recover any
loss or damage
it suffers from political office bearers and officials.
[141]
136.
As the court has already found bad faith and unlawfulness, all that
remains for the municipality to establish is the following:
a.
which councillors and officials were
responsible for the decision;
b.
whether the council mandated the Speaker to
act as he has done, especially in defending these proceedings;
c.
whether
the Speaker has breached the Code of Conduct for Councillors,
[142]
as alleged by the employee;
[143]
d.
the extent of each persons responsibility
for the special leave resolution;
e.
the amount the municipality should recover
from each person; and
f.
the reasons for electing not to recover
from any person.
137.
Even though those who voted to put the employee on special leave
constitute a majority in the council and as such may be
unenthusiastic
about recovering losses from themselves, they are
publicly accountable for the decisions they make in terms of section
176 of the
MFMA. Furthermore, they could be in contempt of
this order.
Second
Alternative Relief: Investigation and report in terms of section
158(1)(d) of LRA
138.
Granting or refusing an order declaring the
special leave unlawful will not end the intense conflict amongst
members of the council,
amongst the administrative officials and
between the council and the administrative officials or at least some
of them. More importantly,
it is unlikely to stop the wasteful
expenditure of public funds in conducting investigations, discipline
and possibly further litigation,
including appeals. Most importantly,
the municipality experienced a financial crisis even before the
employee was put on special
leave. That must have deepened over the
six months that he has been off work. This conflict and the cost of
this litigation must
also impact adversely on service delivery.
139.
It is the business of labour dispute
resolution institutions such as the Labour Court and the CCMA to
resolve conflict in employment
substantively and, as far as possible,
finally.  To achieve this, the causes and nature of the conflict
needs to be diagnosed,
its impact on employment and consequently on
the delivery of services have to be assessed. Finally, a lasting
solution has to be
developed, preferably by consensus.
140.
Weighing these concerns, the court
contemplated and consequently canvassed the parties about making an
order in terms of section
158(1)(d) of the LRA requesting the CCMA to
investigate and report to it on certain matters. Although there is a
bargaining council
having jurisdiction over the local government
industry, in terms of section 158(1)(d) the court has the power to
request only the
CCMA to conduct such an investigation to assist it
and to submit a report to it.
141.
Independently
of and additional to this request, the CCMA has powers to resolve
disputes through conciliation,
[144]
through arbitration
[145]
and
in exceptional circumstances.
[146]
In attempting to resolve disputes the CCMA has powers to subpoena
witnesses, to enter and inspect premises and documents, demand
the
production of documents and take statements.
[147]
It may also give advice and assistance.
[148]
First, the parties have to consent to the CCMA invoking these powers.
Consequently, in requesting the investigation and report,
the court
urges the parties to use the CCMA’s independence and extensive
powers to resolve the conflict insofar as they pertain
to employment,
which includes service delivery.
Costs
142.
The special leave has cost the municipality
almost R420 000 plus the costs of this litigation, for which
both parties have
engaged attorneys and counsel. These are wasteful
expenditures that were incurred as a result of the ill-considered
special leave
resolution of the council taken over 30 minutes.
143.
Furthermore, the municipality had an
opportunity to reconsider its position when, by letter dated 15
October 2009, the employee
invited the Acting Municipal Manager to
uplift the special leave.  Even if the employee had consented to
being placed on special
leave in September, from the moment the
municipality became aware that the employee did not want to remain on
special leave, the
special leave ceased to be at the employee’s
instance and was therefore unlawful. Instead of retracting, the
council dug
its heels in deeper and resolved to investigate and later
charge the employee.
144.
The municipality must therefore pay the
costs.
______________________
ORDER
PILLAY
D, J
The
order I make is the following.
1.
The decision of the respondent to place the employee on special leave
was unlawful
and is set aside.
2.
The respondent is directed to accept the employee’s tender of
services
forthwith.
3.
The respondent is directed to pay the costs of this application.
4.
The council of the respondent is directed to investigate and
determine whether
in terms of section 176 (2) Municipal Finance
Management Act 56 of 2003 the costs ordered above should be recovered
from any political
office bearers and officials.
5.
The Commission for Conciliation, Mediation and Arbitration (CCMA) is
requested
to investigate and report to the court on the following
terms of reference:
(a)
the cause and nature of the conflict within the respondent;
(b)
the impact of the conflict on employment and consequently the
delivery of services;
(c)
if the CCMA is unable to resolve the conflict, it must report to the
court and include
recommendations on how to resolve the conflict;
(d)
if the CCMA does not resolve the dispute, it must report to the court
on the way forward
in resolving disputes between the employee and the
municipality;
(e)
any other matter within the discretion of the CCMA that will assist
the court and the parties.
6.
The order granted in paragraph 5 above is suspended subject to
paragraph 7 below.
7.
If the dispute is not settled substantively and finally by 29 March
2010, the
legal representatives of the employee shall report to the
court and serve on the senior convening commissioner of CCMA, KwaZulu

Natal, a copy of this order and the judgment when it becomes
available.
[149]
Pillay
D, J
APPEARANCES
For
Applicant

Adv CA Nel
Instructed
by Botha Inc.
For
Respondent

Adv TG Madonsela
Instructed
by Strauss Daly Inc.
[1]
E.g.
Dladla v Council of Mbombela Local Municipality & Another (1)
(2008) 29 ILJ 1983 (LC); Hugh Mbatha v Ehlanzeni District

Municipality
(unreported) Case No: J1392/2007
[2]
E.g.
The dispute between South African Airways and its former CEO Khaya
Ngqula
(
http://www.engineeringnews.co.za/article/saa-ceo-ngqulas-employment-terminated-2009-03-10
;
http://www.moneyweb.co.za/mw/view/mw/en/page62093?oid=279732&sn=Detail
)
and the South African Broadcasting Commission and its CEO Dali Mpofu
(
www.sabc.co.za
)
[3]
Section 2(b)
of the Municipal Structures Act No. 32 of 2000 (MSA 2000)
[4]
Section 1
of MSA 2000 – definition of “political structures”
[5]
Section
157(1) of the Constitution of the Republic of South Africa Act 108
of 1996; paragraph 31, page 212 of the respondent’s

supplementary Opposing Affidavit
[6]
Section
157(2) and (3) of the Constitution
[7]
Section
55(1) of the MSA 2000
[8]
Page 10
paragraph 8 of the Founding Affidavit
[9]
Page 208
paragraph 20 of the Respondent’s Supplementary Opposing
Affidavit
[10]
Local
Government: Municipal Performance Regulations for Municipal Managers
and Managers Directly Accountable to Municipal Managers,
2006 (GN
R805 in GG 29089 of August 2006: “ ‘(E)mployer’
means the municipality employing a person as a municipal
manager….as
represented by the mayor….”
[11]
Regulation
15(6) of the Local Government: Municipal Performance Regulations for
Municipal Managers and Managers Directly Accountable
to Municipal
Managers, 2006 (GN R805 in GG 29089 of August 2006
[12]
Regulation
17(2) of the Local Government: Municipal Performance Regulations for
Municipal Managers and Managers Directly Accountable
to Municipal
Managers, 2006 (GN R805 in GG 29089 of August 2006
[13]
Paragraph
17 of the contract empowers the council to suspend the employee
whereas regulation 16 entrusts this responsibility on
the “employer”
i.e. the Mayor. Section 60 of the MSA 2000 restricts delegations by
the council to an executive committee
or executive mayor if they
relate to the determination or alteration of the conditions of
service of the municipal manager.
[14]
Section 61(1)(b) of the MFMA
[15]
Section 53 of the MSA 2000
[16]
Section 54 of the MSA 2000
[17]
Section 69 of the MSA 2000
[18]
Regulation
11(a) of the Local Government: Municipal Performance Regulations for
Municipal Managers and Managers Directly Accountable
to Municipal
Managers, 2006 (GN R805 in GG 29089 of August 2006
[19]
Page
231 of the pleadings Annexure OO
[20]
Page 104
paragraph 65 of the Opposing Affidavit
[21]
His
contract of employment dated 6 September 2006, allows for annual
salary recorded then as R776 000 per annum to be topped with
cost of
living increases. Page 41 of the pleadings bundle, annexure A
[22]
Page
51 of the pleadings annexure B: The Chief Whip wrote: “ I
request council to place on paid leave the municipal manager
pending
investigation into land sales. The request is based on the cash
crisis in uMhlatuze municipality and the fact that the
municipal
council has resolved to investigate land sales and deviations from
council policy, and further that the municipal manager
has resisted
to report to council contents of a forensic investigation by Nexus
Forensic Services fraud totalling R160000 by
employees of Parks,
Sport and Recreation.
The
reason for this request is to ensure that this investigation is not
interfered with and that it gives a true picture of the
causes of
the cash crisis.”
[23]
Page 57
of the pleadings
[24]
Page
65 of the pleadings Annexure E to Founding Affidavit.
[25]
Page 58
of the pleadings
[26]
Page 209
of the pleadings
[27]
Page
27 of the pleadings
[28]
Page 87
paragraph 9 of the Opposing Affidavit
[29]
The
court heard this application six months after the employee had been
placed on special leave. As the pleadings did not explain
the long
period of paid special leave satisfactorily, the court invited the
parties to deliver further affidavits and submissions.
On receipt of
these documents, the court proceeded to prepare the judgment without
hearing the parties again. Whilst writing
the judgment, the judge
decided to canvass the views of the parties on two orders it
considered making in terms of its mandate
to grant “further
and/or alternative relief”. These orders were firstly, to
direct those responsible for the special
leave resolution to show
cause why they should not be ordered to pay the costs of the
application, and secondly, whether the
Commission for Conciliation
Mediation and Arbitration (CCMA) should be ordered to conduct an
investigation and report to the
court on terms of reference
determined by the court to resolve the dispute finally. As it
transpired, the parties also recognised
that the best outcome was to
settle the dispute.
Immediately
before the court reconvened to deliver judgment, both Counsel
informed the judge in chambers that the parties had
agreed on the
terms of settling the dispute and that they awaited the council’s
approval. The judgment would still be relevant,
they said,
because they could not agree costs. The judge expressed concern that
whatever the terms of the settlement were
it had to be in the public
interest; any settlement could not be a waste of public funds. For
this reason too the judge agreed
that the reasons for its judgment
would be relevant.
[30]
Wallis
Labour
and Employment Law
17
[31]
Conventions
No 52 of 1936, No 101 of 1952, No 132 of 1970, No 140 of 1974;
Recommendations No 47 of 1936, No 93 of 1952, No 98
of 1954, No 148
of 1974
[32]
Preamble
to the Local Government: Municipal Performance Regulations for
Municipal Managers and Managers Directly Accountable to
Municipal
Managers, 2006
[33]
Page
40 of the pleadings, paragraph 1 of the employment contract
provides: “Subject to the terms and conditions set
out herein
and to the provisions of the Local Government Municipality Systems
Act 32 of 2000” and in particular the responsibilities
in
terms of section 55 of the Systems Act as well as the Local
Government Municipal Systems Finance Management Act (Act
56 of 2003)
and any other legislation imposing obligations on the Municipal
Manager that the council hereby appoint the employee
and the
employee agrees to be appointed by council as Municipal Manager of
the Umhlatuze Municipality.”
[34]
On
special leave his contract provides as follows: (Page 42 of the
pleadings, annexure A to the Founding Affidavit)
“
7.
Special leave.
7.1
Special leave on fully paid salary shall be granted to the employee
when he:
7.1.1
sits for an examination prescribed or approved by the council.
7.1.2
is to remain in quarantine on the instruction of a registered
medical practitioner,
7.1.3
has been arrested or is to appear in court on a criminal charge and
is later acquitted or the charge is withdrawn.
7.1.4
is attending a meeting or conference approved by the council.
7.1.5
testifies in court in response to a summons having been served on
him.
7.1.6
applies for compassionate leave to a maximum of five working days
per calendar year in order to attend the funeral, birth,
or illness
of a member of the employee’s family or a close relative.
7.2
Special leave on full pay may be granted to the employee in order to
enable him to prepare for an examination referred to
in clause 8.1.1
provided that the number of working days leave granted for study
purposes shall not exceed the number of days
of which the employee
is actually sitting for examination.
7.3
Special leave on full pay not exceeding three (3) working days per
events may be granted to the employee to enable the employee.
7.4
To enable the employee to take part as a contestant in a
bona fide
sports event at provincial and higher level.
7.5
Special leave granted in terms of 8.1, 8.2 and 8.3 above shall
include any time actually and necessarily taken up by travelling
for
the purposes for which the leave is granted.”
[35]
Page 134
of the Opposing Affidavit
[36]
Page
29 of pleadings paragraph 53 of Founding Affidavit; paragraph 18 of
the Applicant’s Replying Affidavit
[37]
See
Chief Whips’ motivation to put employee on special leave above
@ fn 22
[38]
Page
151 of the pleadings, paragraph 19 of the Applicant’s Replying
Affidavit
[39]
Regulation 19
of the Local Government Municipal Performance Regulations for
Municipal Managers and Managers Directly Accountable
to Municipal
Manager, 2006 provides: “Variation:  The employment
contract must provide that no addition to or variation
or mutually
agreed cancellation or novation of the contract and no waiver of any
right arising from the contract or its breach
or termination shall
be of any force or effect unless reduced to writing and signed by
and on behalf of both parties.”
[40]
Regulation 20
of the Local Government Municipal Performance Regulations for
Municipal Managers and Managers Directly Accountable
to Municipal
Manager of 2006 provides: “No indulgence: The employment
contract must provide that no latitude, extension
of time or other
indulgence may be given or allowed by the employer to the employee
in respect of the performance of any obligation
in terms of the
contract and no delay or forbearance and enforcement of any right of
any party arising from the contract, and
no single and partial
exercise of any right by any party under the contract shall in any
circumstances be construed to be an
acquired consent or election by
such party or operate as a waiver or a novation of or otherwise
affect any of the parties’
rights in terms of arising from the
contract, or estopel (
sic
)
or preclude any such party from enforcing at any time and without
notice, strict and punctual compliance with each and every
provision
or term thereof.”
[41]
Page
40 of the pleadings, paragraph 1 of the employment contract.
[42]
The
extract from the minutes reads (Annexure FF page 121 of the
pleadings):
“
Discussion
It was agreed that the
City Manager should be placed on special paid leave…”
That
could only have been a reference to an agreement amongst the 31
councillors who voted for the ensuing resolution because
the
managers, including the employee, were asked to recuse themselves
from the meeting (Page 57 of the pleadings Annexure
C to
Founding Affidavit).
[43]
Page
77 of the pleadings, Annexure L to the Applicant’s Founding
Affidavit
[44]
Page 77
of the pleadings
[45]
Page
89 of the pleadings, paragraph 17 of the Respondent’s Opposing
Affidavit
[46]
[46]
Page 90 of the pleadings, paragraph 18 of the
Respondent’s Opposing Affidavit
[47]
Page
90 of the pleadings, paragraph 19 of the Respondent’s Opposing
Affidavit
[48]
Page
92 of the pleadings, paragraph 27 of the Respondent’s Opposing
Affidavit
[49]
Page
92 of the pleadings, paragraph 28 of the Respondent’s Opposing
Affidavit
[50]
Page 104
of the pleadings, paragraph 67 of the Respondent’s Opposing
Affidavit
[51]
Page 96
of the pleadings
[52]
Para
4-8 of Respondent’s Further Opposing Affidavit
[53]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 276
[54]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 275 fn 312;
Lawrence
Baxter
Administrative
Law
1996 301
[55]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 117
[56]
Section 1© of the Constitution of the Republic of South Africa
Act 108 of 1996
[57]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 117;  Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC)
para 59; S v Mabena 2006 SCA 132 (RSA)
[58]
Martin Brassey
Employment
and Labour Law
Vol 1 C:26
[59]
Section 23 of the Constitution of the Republic of South Africa Act
108 of 1996
[60]
Section 9 of the Constitution of the Republic of South Africa Act
108 of 1996
[61]
Gcaba
v Minister for Safety and Security
Case
CCT 64/08
para
56-58, 66, 70
[62]
Ntshangase
v MEC Finance:KZN
(2009)
ZASCA (13 September 2009)
[63]
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 59
[64]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 276 fn 314
[65]
Marinus Wiechers
Adminstrative
Law
Butterworths 1985 232-233
[66]
JR de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 175
[67]
Marinus Wiechers
Adminstrative
Law
Butterworths 1985 255
[68]
Marinus Wiechers
Adminstrative
Law
Butterworths 1985 257
[69]
JR de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 175
[70]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 276 fn 314
[71]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 278, 280; Marinus Wiechers
Adminstrative
Law
Butterworths 1985 254
[72]
Marinus Wiechers
Adminstrative
Law
Butterworths 1985 254, 256, 233
[73]
JR de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 175
[74]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 276
[75]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 279; Marinus Wiechers
Adminstrative
Law
Butterworths 1985 255.
Hoexter
disagrees with Wiechers who, writing in the pre-democracy era,
argued that bad faith is not an independent ground of invalidity;

section 6(2)(e)(v) of PAJA has since settled the debate.
[76]
JR de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 177
[77]
JR de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 197
[78]
JR de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 196
[79]
Section 6(2)(f)(ii) of PAJA
[80]
JR
de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 203
[81]
Marinus Wiechers
Adminstrative
Law
Butterworths 1985 257
[82]
LH Hoffmann, DT Zeffertt
The
South African Law
of
Evidence
4
th
Edition 495
[83]
Marinus Wiechers
Adminstrative
Law
Butterworths 1985 257
[84]
1.the
Chief Whip’s motivation for the special leave, 2.the special
leave resolution, 3.the Acting Municipal Manager’s
motivation
for the terms of reference for the special leave investigation,4.the
terms of reference for the special leave investigations,
5.the
Speaker’s complaint against the employee, 6.the resolution to
charge the employee, 7.the subsequent charges for misconduct.
[85]
Page
51 of the pleadings annexure B
[86]
Footnote
page 59 annexure C
[87]
“
Cash
flow problems in the city”
(1)
To determine whether the serious cash flow
problems currently being experienced is as a result of delays in the
recovery of land
sales revenue and in some cases the non recovery of
such revenue altogether.
(2)
To determine whether all land sales have
been strictly in accordance with council’s land sales policies
and procedures and
if not, whether this has had a direct impact on
the cash flow problems currently being experienced.
(3)
To determine whether official/s of the
municipality are accountable in the above regard and if so, whether
such action constitute
gross financial misconduct in the performance
of their duties resulting in possible criminal charges as provided
for in terms
of the Municipal Financial Management Act 56 of
2003.
(4)
To determine whether any officials of the
municipality were negligent in the performance of their duties in
budgeting for an unrealistic
income insofar as land sales are
concerned, given the current economic climate and/or being aware of
imminent cash flow problems
that may be experienced in this regard
and not reporting such timeously to council/taking adequate
appropriate preventative measures/interventions
to address the
situation.
(5)
To determine whether the cash flow
problems of the municipality are also the result of other
irregularities pertaining to non
compliance with of proper policies
and procedures, particularly relating to contract management/formal
tender processes not being
followed and, if so, who is accountable
in this regard.
Duty
to report
(6)
To determine the status of the forensic
investigation report prepared by Nexus Forensic Services and whether
council was adequately
consulted/approached for the necessary prior
to this investigation being commenced.
(7)
To determine whether or not the said
forensic report was presented to council for actioning at any stage
in terms of the recommendations
in the report and if not, whether
the non consideration of this report at this stage by council is
grounds for a charge of gross
financial misconduct against any
official/s of the municipality as catered for in terms of the
Municipal Financial Management
Act 56 of 2003.
In
the event of their being a failure to action the recommendations of
the Nexus report at this stage, recommendations being provided
as to
how this process can be undertaken in the least possible time,
taking into account possible criminal, civil recovery and

disciplinary actions that may stem from this report. Furthermore,
whilst not forgetting adequate actions to address internal
control
deficiencies identified in the report to prevent a recurrence of
irregularities identified.”
[88]
Page 127
and 128 Annexure II to the Opposing Affidavit
[89]
Lawrence
Baxter
Administrative
Law
1996 231-233
[90]
[90]
JR de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 198
[91]
Lawrence
Baxter
Administrative
Law
1996 78
[92]
Lawrence
Baxter
Administrative
Law
1996 233
[93]
Lawrence
Baxter
Administrative
Law
1996 301
[94]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 276
[95]
Page
58 of the pleadings, Annexure C to the Applicant’s Founding
Affidavit
[96]
Under
the heading “Duty to Report”
[97]
Page
127 of the pleadings, annexure II, paragraph 1 of the complaint
[98]
Annexure
A to the Supplementary Replying Affidavit
[99]
Page
124 of the pleadings, Paragraph 2.1 of Annexure GG to the
Respondent’s Opposing Affidavit
[100]
Page
124 of the pleadings Annexure GG to Respondent’s Opposing
Affidavit
[101]
Page
96 of the pleadings paragraph 39 of the Opposing Affidavit
[102]
Page
96 of the pleadings paragraph 39 of the Opposing Affidavit
[103]
Paragraph
3 of the complaint
[104]
JR
de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 175; Cora Hoexter
Administrative
Law in South Africa
Juta 2007 278, 280; Marinus Wiechers
Adminstrative
Law
Butterworths 1985 254
[105]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 275 fn 312;
Lawrence
Baxter
Administrative
Law
1996 301
[106]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 117
[107]
Local
Government: Municipal Performance Regulations for Municipal Managers
and Managers Directly Accountable to Municipal Managers,
2006 (GN
R805 in GG 29089 of August 2006
[108]
Page 95
paragraph 37 of the Respondent’s Opposing Affidavit
[109]
Pages
109 to 110 of the pleadings Annexure AA to Opposing Affidavit
[110]
Page 172 of the pleadings para 45.1 of Replying Affidavit
[111]
Section 6(2)(f)(ii) of PAJA
[112]
Page 96 of the pleadings, para 39 of the Opposing Affidavit
[113]
Page 168 of the pleadings, para 41.3 of the Replying Affidavit
[114]
Page
51 and 59, annexures B and C to the Founding Affidavit
[115]
Para
4-8
of the Respondent’s Further Opposing Affidavit;
[116]
Para 11 of the Respondent’s Supplementary Opposing Affidavit
[117]
Page
177 of the pleadings, Annexure AH1 to Applicant’s Replying
Affidavit
[118]
Page
193 of the pleadings, Annexure AH7 to Applicant’s Replying
Affidavit
[119]
Page 135 of the pleadings, Annexure MM to the Opposing Affidavit
[120]
Regulation
1 and 3 of the Local Government: Municipal Performance Regulations
for Municipal Managers and Managers Directly Accountable
to
Municipal Managers, 2006 (GN R805 in GG 29089 of August 2006:
[121]
Page 172 of the pleadings, para 45.2 of Replying Affidavit, page 174
of pleadings para 48 of Replying Affidavit
[122]
Regulation
38 of the
Municipal
Performance Regulations for Municipal Managers and Managers Directly
Accountable to Municipal Managers, 2006 (GN R805
GG 29089 of 1
August 2006; page 143-144 of the pleadings, para 12.9 of the
Replying Affidavit
[123]
JR de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 203
[124]
Page
120 of the pleadings, Annexure EE to the Opposing Affidavit
[125]
Page
155 of the pleadings, paragraph 25.5 of the Applicant’s
Replying Affidavit
[126]
Page
155 paragraph 25.4 of the Replying Affidavit
[127]
Pages 114 to 116 to the pleadings Annexure BB to the Opposing
Affidavit
[128]
Page
116 of the pleadings
[129]
Cora Hoexter
Administrative
Law in South Africa
Juta 2007 276
[130]
Paragraph
24.4 page 155 of the pleadings, paragraph 25.4 of the
employee’s Replying Affidavit
[131]
Para
5-6 of the Respondent’s Further Opposing Affidavit
[132]
Page
162 of the pleadings, para 26.12 of the Replying Affidavit
[133]
Paragraph 6 of the terms of reference for the investigation
[134]
The
court is alerted in Para 10.2 of Respondent’s Further Opposing
Affidavit that the nature of the assistance it sought
was for
funding the municipality’s special leave investigation because
it was cash-strapped.
[135]
Page
126 of the pleadings, annexure HH to the Respondent’s Opposing
Affidavit.
[136]
Para 11-13 of
Respondent’s
Further Opposing Affidavit
[137]
JR de Ville
Judicial
Review of Administrative Action in South Africa
Butterworths 2003 203
[138]
Page
152 of the pleadings, paragraph 21 of the Applicant’s Replying
Affidavit
[139]
At this point the court adjourned after inviting the parties to
discuss with them in chambers the order it intended to grant
in view
of its findings.
[140]
The
court had considered calling on those responsible for the decision
to show cause why they should not be ordered to pay the
costs of the
application. However, both parties urged the court not to do so and
referred it instead to section 176(2)
Municipal
Finance Management Act 56 of 2003.
[141]
176
Liability of functionaries exercising powers and functions in terms
of this Act
(1)
No municipality or any of its political structures, political
office-bearers or officials, no municipal entity or its board
of
directors or any of its directors or officials, and no other organ
of state or person exercising a power or performing a function
in
terms of this Act, is liable in respect of any loss or damage
resulting from the exercise of that power or the performance
of that
function in good faith.
(2)
Without limiting liability in terms of the common law or other
legislation, a municipality may recover from a political

office-bearer or official of the municipality, and a municipal
entity may recover from a director or official of the entity, any

loss or damage suffered by it because of the deliberate or negligent
unlawful actions of that political office-bearer or official
when
performing a function of office.
[142]
Schedule
1 of the Municipal Systems Act 32 of 2000
[143]
Page
154 of the pleadings, paragraph 25.3 of the Applicant’s
Replying Affidavit
[144]
Section 133
and 135 of the LRA
[145]
Section
141 of the LRA
[146]
Section
147 of the LRA
[147]
Section
142 of the LRA
[148]
Section
148 to 149 of the LRA
[149]
The dispute was settled.