About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 170
|
|
Lebu v Maquassi Hills Local Municipality (J 2035/11) [2011] ZALCJHB 170 (21 October 2011)
Reportable
Of
interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J 2035/11
In the matter between:
RALEKGETHU
LEBU
.......................................................................
Applicant
and
MAQUASSI
HILLS LOCAL MUNICIPALITY
................................
Respondent
Heard: 11 October 2011
Delivered: 21 October 2011
Summary: Urgent application – alleged unlawful suspension –
alleged lack of authority – contractual requirements.
JUDGMENT
STEENKAMP J
Introduction
This is an urgent application to declare the applicant’s
suspension unlawful and wondering the respondent to reinstate
him in
his position as municipal manager. In the alternative, the applicant
seeks an order compelling the respondent to provide
him with certain
information.
Background facts
The applicant was appointed as municipal manager on 1 November 2008
in terms of sections 56 and 57 of the Municipal Systems Act.
1
It is disputed whether his term is due to end on 31 October 2011 or
31 October 2012. That dispute is pending before this court
under a
different case number and it does not concern this application.
The applicant was suspended following a series of resolutions by the
respondent. Those resolutions were adopted on 9, 12 and
20 September
2011, respectively. The applicant alleges that the resolutions were
unlawful for non-compliance of the Disciplinary
Regulations for
Senior Managers, 2010
2
("the Regulations").
In limine:
Authority to depose to answering affidavit
The respondent’s acting municipal manager, Mr Masindi Mapholi,
deposed to the answering affidavit on its behalf. He alleges
that he
is duly authorised to do so. The applicant disputes that, as the
respondent did not adopt a resolution authorising him
to do so.
The applicant argues that, in terms of section 59 of the Systems
Act, only the Municipal Council is vested with the powers of
authority to make any decisions pertaining to the municipal
manager's contract of employment and conditions of service. Section
60 of the Systems Act provides as follows:
"60
(1) The following powers may, within a policy framework determined by
the municipal council, be delegated to an executive
committee or
executive mayor only:
decisions to expropriate
immovable property or rights in order to immovable property; and
the determination or
alteration of the remuneration, benefits or other conditions of
service of the municipal manager or managers
directly responsible
to the municipal manager.
(2) The council may only
delegate to an executive committee or executive mayor or chief
financial officer decisions to make investments
on behalf of the
municipality in a policy framework determined by the Minister of
Finance.”
The applicant argues that the decision to suspend him falls under
section 60(1)(b) of the Systems Act, i.e. the determination
or
alteration of his conditions of service. That decision, he argues,
could only be delegated to an executive committee or executive
mayor. It is common cause that there was no such delegation. Neither
did the Council adopt a resolution authorising the acting
municipal
manager to oppose the application. Therefore, says the applicant,
the acting municipal manager was not authorised to
do so and his
answering affidavit must be disregarded.
Mr
Loyson,
for the respondent, argued that it is trite that
no resolution or delegation is required for the acting municipal
manager to depose
to an affidavit. That much is clear from the
decision in
ANC Umvoti Council Caucus v Umvoti Municipality.
3
But it remains open to the other party to challenge the deponent’s
authority to initiate or defend litigation on behalf
of the
municipality.
It follows that the crisp issue to determine is whether the acting
municipal manager required the delegated authority by the
Council to
oppose an urgent application by the suspended municipal manager.
This question turns on the interpretation of sections 59 and 60 of
the Systems Act. Did the Council, in terms of those sections,
have
to delegate the authority to depose to an answering affidavit to the
acting municipal manager. by way of a resolution?
The applicant relies on those portions of sections 59 and 60 of the
Systems Act dealing with the “conditions of service”
of
the municipal manager. It may well be so that the suspension of the
municipal manager falls within the determination or alteration
of
his conditions of service. But the objection to the authority of the
acting municipal manager that the applicant raises is
aimed at his
authority to depose to an answering affidavit; not to decide on the
suspension of the applicant. That authorisation
does not, in my
view, fall within the purview of section 59 or 60 of the Systems
Act.
Obviously, not any person can purport to act on behalf of a
municipality or oppose an application brought against the
municipality.
In this regard, the applicant placed reliance on
Kouga
Municipality v SA Local Government Bargaining Council & Others.
4
in that case, it was held that any delegation by a municipal
manager, on the facts before the court, had to be approved by the
municipality. Therefore, employees in the human resources department
of municipality did not have the required authority to act
on behalf
of the municipality. But the
ratio
of the court did not deal
with the purported required authority of the acting municipal
manager to oppose an application as in
the present case. It is not
authority for the proposition that the applicant advances.
The applicant also sought to rely on
Mbatha v Ehlanzeni District
Municipality & Others.
5
But that case is not on point either. It relates simply to the
exclusive power that a council has to discipline a municipal manager
and that such a decision could not be delegated to the mayor. That
appears to me to be correct. It is not authority for the proposition
that a delegation is required to authorise a municipal manager to
depose to an answering affidavit on behalf of a municipality,
though.
The applicant also relied on
Moila v Shai
6
.
But in that case, a power of attorney was filed, pursuant to a
purported resolution. It transpired that no such resolution was
adopted. In the present case, there is no allegation that a
purported resolution authorising the acting municipal manager to
depose to the answering affidavit was not properly adopted.
There appears to me to be nothing improper about the authority given
to the acting municipal manager to oppose this application
on behalf
of the municipality. In terms of section 55(1) of the Systems Act,
the municipal manager is responsible for the administration
of the
municipality and “carrying out the decisions of the political
structures and political office bearers of the municipality".
He must carry out the decisions of the municipal council. And, as
Nugent JA pointed out in
Manana v King Sabata Dalindyebo
Municipality
7
:
“
In
my view, section 55(1) is no more than a statutory means of
conferring such powers on municipal managers to attend to the affairs
of the municipality on behalf of the municipal council. There is no
basis for construing the section as simultaneously divesting
the
municipal council of any of its executive powers. Indeed… the
Constitution vests all executive authority – which
includes the
authority to appoint staff – in the municipal council and
legislation is not capable of lawfully divesting it
of that power. To
the extent that there might be any ambiguity in the statute in that
respect it must be construed to avoid that
result."
The Council, in this case, decided to oppose the relief sought, and
to defend its suspension of the applicant. The authority
to depose
to the affidavit opposing the application was given to the acting
municipal manager. It does not appear to me that
that authority was
improperly given or that it required a separate resolution by the
Council.
I will, therefore, consider the merits of the application by
considering the affidavits filed by the applicant as well as the
respondent.
Urgency
The applicant was suspended on 21 September 2011. He launched this
application the very next day, on 22 September 2011. It was
initially set down for hearing on 28 September 2011. On that day, it
was postponed by agreement to enable the parties to file
answering
and replying affidavits; and set down for hearing on 11 October
2011.
I am satisfied that the applicant pursued the matter with the
necessary urgency. Whether he is entitled to the relief sought
on an
urgent basis, is another matter. In order to decide whether he is,
the background needs to be set out in more detail.
First resolution: 9 September 2011
At this meeting, the Council noted that the applicant was alleged to
have contravened certain supply chain management policies.
It
resolved that:
“
The
Municipal Manager be suspended with immediate effect regarding all
non compliance issues.”
Second resolution: 12 September 2011
It appears that, at or before this meeting, the Council realised
that the resolution to suspend the applicant without affording
him
the opportunity to provide reasons why he should not be suspended,
was contrary to Regulation 6 of the Regulations.
The Council rescinded the resolution taken on 9 September 2011 and
adopted the following resolution:
“
The
Acting Speaker Cllr DK Mohadi must furnish the Municipal Manager with
a letter in terms of the provisions of Regulation 6 of
the Local
Government Disciplinary Regulations for Senior Managers, 2011 to make
written representations to the Council within 7
days of this
decision, why he should not be suspended for misleading Council and
deviation without authority from the Procurement
Policy of Council.”
The acting speaker sent a letter to the applicant on the same day,
headed: "Intention to suspend: municipal manager".
It
reads as follows:
"We
refer to the above, and kindly advise that you are hereby, in terms
of the provisions of Regulation 6 of the Local Government:
Disciplinary Regulations for Senior Managers, 2011, informed that the
Municipal Council, at its meeting held on 12 September 2011
resolved
to impose a precautionary suspension on you, on the following
grounds:
You allegedly mislead
[sic] Council by claiming that Council took a resolution to
extend the services of
Sediasy Management Consultancy
and
based on this false claim, extended the contract under the
pretext of a so-called "deviation" from Council
Supply Chain and Procurement Policy and Regulations.
You allegedly failed to
follow Council Supply Chain Policy by appointing "Edge
Forensic and Risk Consultant"
way beyond the initial
agreed fee structure and terms of reference without following
the Supply Chain Policy.
Kindly
note that you are hereby given the opportunity to make written
representation to the Municipal Council, indicating why you
should
not be suspended. Any representations made shall be made in writing
to the Municipal Council within seven days from this
letter, i.e. by
no later than 19 September 2011, and be delivered to the office of
the records manager. Any representations made
will be duly considered
by the Municipal Council and you will be informed in writing of the
outcome of the consideration."
The applicant’s attorneys responded on 19 September 2011 and
made lengthy representations regarding the substance of the
allegations against the applicant. However, they also pointed out
the following:
"5.
In terms of the Local Government: Disciplinary Regulations for Senior
Managers, 2010, our client merely needs to justify
that his continued
presence will not:
5.1
jeopardise any investigation into the alleged misconduct;
5.2
endanger the well-being or safety of any person or municipal
property;
5.3
that his continued presence will not be detrimental to stability in
the Municipality;
5.4
, that our client will not interfere with potential witnesses or
commit further misconduct.
6.
It must be pointed out that you have not indicated or even alleged
that there may be a possibility of the above stated occurring,
neither that he had any intention to Institute a disciplinary
process."
Resolution of 20 September 2011
On 20 September 2011, the Council adopted the following resolution:
“
The
written representation forwarded by the municipal manager dated 19
September 2011 regarding the intention to suspend him is
not accepted
by Council.
The
municipal manager is suspended with immediate effect with full pay
and benefits."
On 21 September 2011 the respondent wrote to the applicant in these
terms:
"Kindly
take note that Council has resolved (ICSLC Res No 07/2011) to suspend
you from further continuing with your designated
duties as the
Accounting Officer of the Municipality. Your suspension is with full
pay and benefits.
...
Council
has resolved that an investigation must immediately commence into the
allegations made against you which Council will resolved
[
sic
]
to institute disciplinary action against you, or not, depending on
the outcome of the investigation.
…
You
are lastly required to hand in all keys and other access tools to the
premises at other places within the municipal premises
to the
speaker."
Further correspondence regarding the legality of the suspension,
specifically with regard to the question whether the relevant
council meetings were properly constituted, followed between the
parties' respective attorneys. It suffices to say that the matter
could not be resolved and the present application ensued.
Non-compliance with contract and Regulations
The applicant founds his claim squarely on the basis that the
suspension is in breach of the applicant’s contract of
employment and the regulations. He does not base his claim on an
unfair labour practice in terms of section 186(2)(b) of the Labour
Relations Act .
8
The contract of employment includes the following terms:
“
PRECAUTIONARY
SUSPENSION
“
The
employer may suspend an employee on full pay if he or she is alleged
to have committed a serious offence and the employer believes
his or
her presence at the workplace might jeopardise any investigation into
the alleged misconduct or endanger the well-being
or safety of any
person or municipal property; provided that before an employee is
suspended as a precautionary measure, he or
she must be given an
opportunity to make representation on why he or she should not be
suspended in line with the prescribes of
the LRA and BCEA as
amended."
This contractual clause must be read together with regulation 6,
quoted above. That regulation specifies that the municipal council
must inform the senior manager in writing of the reasons for his or
her suspension on or before the date of suspension.
In the present case, the respondent did not provide the applicant
with any reasons for his suspension. It did provide him with
the
opportunity to make representations in terms of regulation 6(5)(2).
It also clearly alleged that he has committed an act
of misconduct,
as envisaged in regulation 6(1) and clause 18 of the contract of
employment. But the respondent has not complied
with the rest of
regulation 6(1) read with the contract of employment.
The relevant clause in the contract of employment is drafted in the
conjunctive and not disjunctive: it specifies that the Council
may
suspend an employee if he is alleged to have committed a serious
offence
and
the Council believes his or her presence at the
workplace might jeopardise any investigation into the alleged
misconduct or endanger
the well-being or safety of any person or
municipal property.
Similarly, in terms of regulation 6(1), it is not sufficient for the
Council to allege that the senior manager has committed
an act of
misconduct in order to suspend him him; it must also have reason to
believe that his presence may jeopardise the investigation,
endanger
the well-being or safety of any person or municipal property, or be
detrimental to stability in the Municipality; or
that he may
interfere with potential witnesses or commit further acts of
misconduct.
In argument, Mr
Loyson,
for the respondent, submitted that it
is clear from the facts of this case, as set out in the answering
papers that the applicant,
in his position as municipal manager and
accounting officer, could interfere with the investigation and has
in fact committed
further acts of misconduct. The problem is that
none of this was alleged
before
he was suspended, as required
by regulation 6 and the contract of employment. Therefore, the
applicant was not given an opportunity
to make representations why
he should not be suspended, based on those reasons.
It seems clear to me that the respondent has not complied with the
provisions of the contract of employment or of the regulations
before suspending the applicant. The applicant has therefore
established a clear right for the relief it seeks.
This conclusion may appear to be overly technical. On may be tempted
to of the allegations against him, his presence at the workplace
would place him in a position where he could interfere with the
investigation or commit further acts of misconduct. But, as Halton
Cheadle has pointed out, suspension is the workplace equivalent of
arrest. It is not something that an employer should resort
to
lightly, and when it does, it should give the employee a proper
opportunity to be heard. That can only be done in circumstances
where the employer has explained why it deems a suspension
necessary, and the employee has had a proper opportunity to respond
to those reasons.
It must also be borne in mind that the language of the contract of
employment and the regulations is clear in this case. The
employee
has a contractual right to know what the reasons are for his
intended suspension, and to make representations in regard
thereto.
This is not a case where the employee's claim is based on an implied
right to fairness. In
South African Maritime Safety Authority v
McKenzie
9
the Supreme Court of Appeal has now held that no such an implied
right can be read into contracts of employment generally. Therefore,
Lagrange J held in
Mahlalela v Pensions Fund Adjudicator
10
,
with reference to the earlier judgment in
Mogothle v Premier of
the Northwest Province & others
11
:
“
In
that case, the court held that a trio of decisions by the Supreme
Court of Appeal had established an employee’s contractual
right
to fair dealing that can be enforced by the Labour Court under the
provisions of
s 77(3)
of the
Basic Conditions of Employment Act 75 of
1997
, which exists independently of any statutory rights to
protection against unfair labour practices.
However,
since this decision, the SCA decisions referred to in
Mogothle
have been revisited by the SCA in its recent decision in the
McKenzie
case. In that case the SCA unequivocally held that, in the absence of
specific provisions in a contract of employment to the contrary,
an
employer did not owe an employee a contractual obligation to act
fairly. Wallis JA distinguished the authority of the previous
decisions referred to by Van Niekerk J [in
Mogothle
], finding
in effect that those decisions did not establish the existence of a
contractual right to fairness. It might be that there
could be sound
reasons not to follow the apparently authoritative dicta in
McKenzie
,
but none were advanced and accordingly I must accept for present
purposes that the latest pronouncement of the SCA on the
non-existence
of a contractual duty of fairness must prevail.
Consequently, insofar as the applicant relies on a contractual
obligation of fair
dealing, he cannot succeed.”
But as I have pointed out, the applicant in this case has a clear
contractual right, and there is no need to read such a general
implied term into his contract of employment. There is a specific
provision in the contract – and in
regulation 6
–
dealing with the employee’s rights prior to suspension.
The sentiments expressed by Van Niekerk J in
Mogothle
are
therefore still applicable to the case before me, even if no general
right to fair dealing can be implied in the contract
of employment.
In this case, the contractual rights pertaining to the reasons for
suspension are set out in the applicant’s
contract of
employment and in the Regulations.
And, as Nugent JA recently pointed out in
Manana v King Sabata
Dalindyebo Municipality
12
:
“
The
evidence in this case establishes the existence of a contract of
employment between the municipality and [the applicant]. And
he
wishes to enforce the contract... That he might have been entitled to
other relief under the remedies provided for under the
Labour
Relations Act does not somehow extinguish his contractual rights.”
The right that the applicant relies upon in this case is clearly
stated in his contract of employment. He has established a clear
right for the relief sought.
Irreparable harm
The applicant is suffering harm in that he does not know why he
should be suspended, and he has not had an opportunity to address
those purported reasons.
The applicant is employed in a high-profile and politically
sensitive position as the municipal manager. It may well be that
he
has committed serious misconduct. That is for another tribunal to
decide. But at the moment, he is suffering harm to his dignity
and
reputation; and he has not been given an opportunity to prevent
that, contrary to the clear provisions of his contract of
employment
and the Regulations.
Alternative remedy
As I have pointed out, the applicant does not allege an unfair
labour practice in the form of unfair suspension as contemplated
by
s 186(2)(b) of the Labour Relations Act.
13
Had that been the case, he would have had an alternative remedy by
referring an unfair labour practice dispute to the relevant
bargaining council in terms of s 191 of the LRA. But his claim is
founded on a breach of contract. The only alternative remedy
would
be a claim for damages. That would be nearly impossible to quantify
and would in any event be too late, as it would not
be heard before
he is due to face a disciplinary hearing, which is to take place
within 60 days from the date of suspension in
terms of the
Regulations.
Conclusion
I have come to the conclusion that the applicant has satisfied the
requirements for an interdict
14
and is entitled to the relief sought.
In the light of that conclusion, I need not consider the question
whether the relevant Council meetings were properly constituted
and
the resolutions validly adopted.
With regard to costs, I take into account that the applicant has had
to incur legal costs in order to compel the respondent –
an
entity that is funded by its ratepayers – to abide by its
contractual obligations. It should not have been necessary.
In law
and fairness, costs should follow the result.
Order
I therefore make the following order:
The applicant’s suspension is declared to be unlawful and is
set aside.
The respondent is ordered to reinstate the applicant into the
position that he occupied immediately before his suspension with
immediate effect.
The respondent is ordered to pay the applicant’s costs.
___________________
Anton J Steenkamp
Judge
APPEARANCES
APPLICANT: Attorney W Scholtz.
RESPONDENT: Adv Ernst Loyson
Instructed by Eric H Louw attorney.
1
Local
Government: Municipal Systems Act, Act 32 of 2000.
2
Notice
No 344, published in
Government Gazette
No 34213
of 21 April 2011.
3
2010
(3) SA 31
(KZN).
4
(2010)
31
ILJ
1211
(LC).
5
[2007] ZALC 89
;
(2007)
16 LC 10.7.1
;
[2008] 5 BLLR 417
(LC).
6
(2007)
28
ILJ
1028
(LAC).
7
[2011]
3 BLLR 215
(SCA) para [17].
8
Act
66 of 1995.
9
2010
(3) SA 601
(SCA);
[2010] 3 All SA 1
(SCA).
10
(2011)
32
ILJ
1932
(LC) paras [11] – [12].
11
(2009)
30
ILJ
605
(LC);
[2009] 4 BLLR 331
(LC).
12
[2011]
3 BLLR 215
(SCA) para [23].
13
Act
66 of 1995.
14
As
set out in
Setlogelo v Setlogelo
1914
AD 221.