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[2011] ZALCJHB 124
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Lebu v Maquassi Hills Local Municipality and Another (J 2822/11) [2011] ZALCJHB 124; [2012] 9 BLLR 904 (LC) (13 December 2011)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
Case
No: J 2822/11
In
the matter between:
RALEKGETHO
LEBU
….................................................................................
Applicant
and
MAQUASSI
HILLS
LOCAL
MUNICIPALITY
…................................................................
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
….................................................................
Second
Respondent
Heard:
08 December 2011
Judgment:
13 December 2011
REASONS
FOR JUDGMENT
LAGRANGE,
J
Introduction
Judgment
in this matter was handed down on 13 December 2011, as set out in
paragraphs [39] and [40] hereunder. The reasons for
the judgment are
set out below.
This
is an urgent application brought by the municipal manager, Mr R
Lebu, of the Maquassi Hills Local Municipality, the first
respondent, to prevent the municipality from proceeding with a
disciplinary enquiry against him pending compliance with the Local
Government: Disciplinary Regulations for Senior Managers, 2010 ('the
regulations'). The regulations were issued by the responsible
Minister for Cooperative Governance and Traditional Affairs in terms
of
section 120
of the
Local Government: Municipal Systems Act, 32 of
2000
.
1
The
application does not occur in isolation but is the latest episode in
a legal saga which has been running since late last year,
no doubt
at considerable expense to the ratepayers of the respondent
municipality. I am the fifth member of this Court to preside
over
yet another bout in this legal narrative. The previous events are
summarised in the decision of Van Niekerk J between
Ralekgetho
Lebu v Maquassi Hills Local Authority and others
(J
2695/11, unpublished judgment), dated 7 December 2012. I do not
intend to repeat them here.
In
the most recent case Van Niekerk J held that the applicant had been
unlawfully suspended on 22 November 2011 and had reinstated
him in
his position as municipal manager with immediate effect. As a
measure of his disapproval of the conduct of the councillors
on the
local authority, he made an order of costs on a punitive scale for
which they were held jointly liable with the council.
On
30 November 2011, two days before the application concerning Mr
Lebu’s unlawful suspension was due to be heard, he was
presented with a disciplinary charge sheet and notice of a
disciplinary hearing scheduled for 8 December 2011. It is these
proceedings that are the object of the applicant’s attack in
this application.
In
essence, the applicant claims that the institution of these
proceedings was contrary to the disciplinary regulations and were
not properly authorised. For the purpose of dealing with the
specific allegations as to why the applicant alleges that the
conduct of the municipality in instituting these proceedings falls
short of the requirements of the regulations the pertinent portions
of the regulations are set out below:
"Policy
4
(1) If a senior manager is alleged to have committed misconduct, the
municipal council must institute disciplinary proceedings
in
accordance with this Disciplinary Code.
...
Disciplinary
procedures
5.
(1) Any allegation of misconduct against a senior manager must be
brought to the attention of the municipal council.
(2)
An allegation referred to in sub regulation (1) must be tabled by the
mayor or the municipal manager, as the case may be, before
the
municipal council not later than seven [7] days after receipt
thereof, failing which the mayor may request the Speaker to convene
a
special council meeting within seven [7] days to consider the said
report.
(3)
If the municipal council is satisfied that-
(a)
There is reasonable cause to believe that an act of misconduct has
been committed by the senior manager, the municipal council
must
within seven [7] days appoint an independent investigator to
investigate the allegation [s] of misconduct; and
(b)
There is no evidence to support the allegation [s] of misconduct
against the senior manager, the municipal council must within
seven
[7] days dismiss the allegation [s] of misconduct.
(4)
The investigator appointed in terms of sub regulation (3) (a) must,
within a period of thirty [30] days of his or her appointment,
submit
a report with recommendations to the mayor or municipal manager, as
the case may be.
(5)
The report contemplated in sub regulation (4) must be tabled before
the municipal council in the manner and within that timeframe
as set
out in sub regulation (2).
(6)
After having considered the report referred to in sub regulation (4),
the municipal council must by way of a resolution institute
disciplinary proceedings against the senior manager.
(7)
the resolution in sub regulation (6) must-
(a)
include a determination as to whether the alleged misconduct is that
serious or a less serious nature;
(b)
authorise the mayor, in the case of the municipal manager, or
municipal manager, in the case of the manager, directly accountable
to the municipal manager to-
(i)
appoint-
(aa)
an independent and external presiding officer; and
(bb)
an officer to lead evidence; and
(ii)
sign letters of appointment."
To
understand the applicant’s claim that the regulations were not
complied with in a number of respects when the municipality
initiated disciplinary proceedings, a brief synopsis of the sequence
of events and in particular the decisions taken by the council
is
useful.
In
the special council meeting held in committee on 12 September 2011,
a decision was taken to suspend the applicant. The reasons
given for
the suspension were that he had misled the council and deviated from
the council's procurement policy without authority.
The
next special council meeting held in committee was held on 20
September 2011, which purported to consider the applicant’s
representations against what it now characterised only as council's
‘intention’ to suspend him. In resolution ICSLC
no
7/2011 the applicant's immediate suspension was confirmed and it was
resolved that:
"4.
The Acting Municipal Manager must immediately appoint a suitable
person or persons to conduct an investigation into any
action and
decisions taken by the municipal manager in terms of his statutory
and delegate duties as head of the administration
and/or as
Accounting Officer of the municipality.
5.
The appointed investigator must file a report to the council was in a
suitable timeframe so the council could take any necessary
steps to
either approve the institution of disciplinary processes or uplift
the Municipal Manager's current suspension."
The
Acting municipal manager deposing to the respondents’
answering affidavit says that he appointed an attorney, Mr B Manoko,
to conduct the independent investigation.
At
a subsequent special council meeting held in committee on 13 October
2011, the council resolved to oppose the applicant’s
application for a declarator that his employment contract was only
due to end a year later in October 2012. The same resolution
also
included this decision:
"4.
Through the appointed attorneys; the acting municipal manager must
institute disciplinary measures against the suspended
municipal
manager and any other municipal employees who were involved in a
corrupt activities are performing their official duties."
(sic)
According
to the acting municipal manager, the final investigation report
drawn up by Manoko was submitted on 7 November 2011
and was tabled
at the council meeting of 14 November for consideration. The council
then resolved to institute disciplinary proceedings
against the
applicant and appointed Manoko to act as the prosecutor. The
relevant portion of the resolution in question reads:
"3.
Having considered the report tabled by the Acting municipal manager
concerning the investigation done by ATTORNEY R A MANOKO
and the
report that the allegations of financial misconduct and other
transgressions is of a very serious nature, disciplinary
steps
immediately be taken against the municipal manager and the specific
purpose appoint a prosecutor and a chairperson to facilitate
this
process in line with the regulations pertaining to senior managers.
5.
Attorney BILLY MANOKO of Carltonville be appointed as Prosecutor.
6
SALGA or the MEC be requested to appoint a Presiding Officer for the
hearing if a hearing is to be held."
(sic)
On
5 December 2011, Mr G Williams, a Tokiso panellist, was sent a
letter from the Acting municipal manager advising him that he
had
been appointed to chair the enquiry in terms of a council
resolution.
The
applicant’s claims
Non-compliance
with sub-regulation 5(2)
The
applicant complains that only two of the allegations of misconduct
with which he was eventually charged were actually discussed
at the
first special council meeting. Also, these allegations were not
tabled by the mayor or by himself (at that stage he had
not yet been
suspended and no Acting Municipal Manager had been appointed). This,
he submits, is a breach of regulation 5(2),
which is a mandatory
step in the institution of disciplinary proceedings.
I
do not believe the obligation on the mayor to table the allegations
constitutes a peremptory step in the sense that it is a
necessary
pre-requisite which must occur before the council can consider any
particular allegation against the municipal manager.
What
sub-regulation 5(2) does do is to place an obligation on the mayor
to table such allegations if they are made, and the mayor
would be
failing in her duties if she did not do so when that happens. But
merely because the mayor does not table allegations
of misconduct
against the municipal manager, does not prevent the council
discussing them.
The
second leg of the applicant’s complaint of non-compliance with
sub-regulation 5(2) is that only two issues, namely that
he had
misled the council and deviated from the council's procurement
policy without authority, were discussed at the meeting
of 12
September 2011, whereas he was charged with 11 counts of misconduct.
On the applicant’s interpretation of the regulations,
only
charges which corresponded to the allegations tabled in the council,
and which had been the subject of a subsequent investigation
in
terms of sub-regulation 5(5), could form part of the charge sheet.
Thus, on his version, even if the investigation into the
allegations
revealed a wider range of misconduct, the council would be obliged
either to ignore these, or would have to repeat
the process of the
mayor tabling the other alleged misconduct now revealed.
This
would have absurd results. For example, if the original allegations
made against the senior management member were allegations
A and B,
and the subsequent investigation revealed a prima face case of acts
of misconduct A and C, the council would be obliged
to table
allegation C again and repeat the cycle, including another
investigation of that allegation even though it had come
to light in
the previous investigation. It is true that the investigator is
appointed to investigate the initial allegations
made, but I do not
think that if an investigation authorised by the council reveals
other misconduct, the council is then precluded
from including those
matters in charges which are subsequently formulated. There can be
no material prejudice to a senior manager
in facing charges
formulated after an investigation which are not identical to the
complaints originally referred to the council.
The manager in
question would still have the same opportunity to deal with those
charges in any subsequent disciplinary enquiry.
The
applicant’s contention is that if every charge of misconduct
was not first tabled at the council by the relevant functionary,
then all subsequent steps in the process are invalid as well as any
additional charges finally formulated in the notice of the
enquiry.
For the reasons stated, I do not think that strict compliance with
sub-regulation 5(2) is peremptory. The importance
of that regulation
is that claims of misconduct must come before a council meeting and
must be investigated before steps can
be taken against a senior
manager. If further allegations emanate from that investigation
then, provided the council considers
those allegations before
charges are issued, I believe the purpose of the regulations would
have been achieved. The interpretation
argued for by the applicant
could never have been seriously intended by the authors of the
regulations.
Non-compliance
with sub-regulation 5(6)
Another
complaint of the applicant is that the council took a decision to
institute disciplinary proceedings against him, at the
special
council meeting held on 13 October 2011, which took place before the
investigator’s report had been tabled before
the council as
required by sub-regulation 5(6). This claim appears to be correct.
However,
this authorisation was not acted upon. It was only after the council
had received the report and considered it that charges
were brought
on 30 November 2011. As a result, it cannot really be said that
disciplinary proceedings were set in motion by the
resolution of 13
November 2011.
The
applicant also claims that the special council meeting of 12
September 2011 was not properly convened in terms of the standing
orders governing council procedure and accordingly the decision of
the meeting that the applicant should be requested to make
representation why he should not be suspended was invalid and should
be set aside. However, this challenge goes to the validity
of the
applicant’s suspension and not to the holding of the
disciplinary enquiry which is the subject of this application.
Accordingly, it is not necessary to address this claim.
Non-compliance
withsub-regulation 5(7)(b)(i)(aa)
The
applicant also attacks the validity of the appointment of Williams
as the chairperson of the enquiry. He says the appointment
was in
conflict with sub-regulation 5(7)(b)(i)(aa), in terms of which the
mayor must be authorised to appoint the presiding officer,
whereas
in this case, the acting municipal manager made the appointment.
Sub-regulation 5(7) is drafted in peremptory language,
though that
is not necessarily determinative of whether non-compliance is fatal
to the validity of any action taken.
In
the case of
Weenen Transitional Local Council v Van Dyk
2002 (4) SA 653
(SCA)
, the SCA had to consider whether or not
a notice announcing municipal rates assessments complied with the
requirements of the
Local Authorities Ordinance 25 of 1974 (KZN) in
terms of which the notices were issued. At 659,[13] of the judgment
Olivier,
JA writing for a unanimous bench, said:
“
[13]
It seems to me that the correct approach to the objection that the
appellant had failed to comply with the requirements of
s 166 of the
ordinance is to follow a common-sense approach by asking the question
whether the steps taken by the local authority
were effective to
bring about the exigibility of the claim measured against the
intention of the legislature as ascertained from
the language, scope
and purpose of the enactment as a whole and the statutory requirement
in particular (see Nkisimane and Others
v Santam Insurance Co Ltd
1978
(2) SA 430 (A)
at
434A - B). Legalistic debates as to whether the enactment is
peremptory (imperative, absolute, mandatory, a categorical
imperative)
or merely directory; whether 'shall' should be read as
'may'; whether strict as opposed to substantial compliance is
required;
whether delegated legislation dealing with formal
requirements are of legislative or administrative nature, etc may be
interesting,
but seldom essential to the outcome of a real case
before the courts. They tell us what the outcome of the court's
interpretation
of the particular enactment is; they cannot tell us
how to interpret. These debates have a posteriori, not a priori
significance.
The approach described above, identified as '. . . a
trend in interpretation away from the strict legalistic to the
substantive'
by Van Dijkhorst J in Ex parte Mothuloe (Law Society,
Transvaal, Intervening)
1996
(4) SA 1131
(T)
at
1138D - E, seems to be the correct one and does away with debates of
secondary importance only.”
Following
this approach the real issue to be determined is whether the steps
taken by the respondent were sufficient to achieve
the objects of
the regulation as determined by the language, scope and purpose of
the enactment as a whole.
The
applicant contends that the mayor’s role is not simply to
carry out the council’s decision, but that she has a
discretion as to whom to appoint as enquiry chairperson. The
council’s role in the appointment of an enquiry chairperson
is
simply to give the mayor a mandate to make the appointment using her
discretion. In this instance, the mayor recused herself,
for
personal reasons, from most of the council discussions concerning
the steps taken against the applicant.
I
do not believe that regulation 5(7)(b)(i)(aa) was intended to give
the mayor the discretion not to exercise her function of
appointing
a chairperson. Moreover, it does not seem to me that the discretion
she was afforded by the regulation was to give
her the exclusive
power to decide who should be appointed as a chairperson. The more
probable explanation for giving her the
power to identify the
suitable appointee was to deal with the practical problems which
might arise from the unavailability of
candidates and to avoid a
situation in which the mayor would have to revert back to the
council every time a preferred candidate
was not available. Thus, on
a proper interpretation of the regulations, it does not seem that
the role played by the mayor under
the regulations was anything more
than a practical one: the performance of her role was not a
substantive pre-requisite for making
the appointment of a
chairperson, which would render any appointment invalid if she
personally did not make it.
In
any event, because the mayor simply failed to fulfil her function of
making an appointment, there is another basis on which
the validity
of the appointment can also be considered.
One
of the charges brought against the applicant was that the mayor had
indirectly benefitted from one of his alleged acts of
impropriety
because he supposedly used funds of the municipality to pay for an
air flight of the mayor’s friend. The mayor
refused to sign a
letter appointing Williams as the chairperson because she claimed
that the council had already taken the decision.
Accordingly, so she
reasoned, she had no role to fulfil. In consequence, the acting
municipal manager signed the letter of appointment,
in her stead.
It
is clear that in the case of senior managers other than a municipal
manager, sub-regulation 5(7)(b)(i)(aa), intended that the
municipal
manager could make the appointment on being authorised to do so by
the council, but in the case of the municipal manager
the
appointment would be made by the mayor. In this instance, the mayor
was not co-operative. The council eventually took the
decision
itself and effectively instructed the acting municipal manager to
make the appointment. I believe this decision was
well within the
council’s powers and was an appropriate step where the
mechanism for appointment envisaged in the regulations
had become
dysfunctional because the mayor was clearly not acting as a neutral
party in the matter of disciplinary action being
taken against the
applicant.
The
fact that the regulations set out a two stage procedure for the
appointment of a chairperson cannot detract from the powers
of a
council set out in the Local Government: Municipal Systems Act 32 of
2000 (‘the MSA’). The relevant sections
of the MSA read:
“
[doja32y2000s8]8
General empowerment
(1)
A municipality has all the functions and powers conferred by or
assigned to it in terms of the Constitution, and must exercise
them
subject to Chapter 5 of the Municipal Structures Act.
(2)
A municipality has the right to do anything reasonably necessary for,
or incidental to, the effective performance of its functions
and the
exercise of its powers.
[doja32y2000s11]11
Executive and legislative authority
(1)
The executive and legislative authority of a municipality is
exercised by the council of the municipality, and the council takes
all the decisions of the municipality subject to section 59.
(2)
A municipality may exercise executive and legislative authority
within its boundaries only, but may, by written agreement with
another municipality and subject to Chapter 5 of the Municipal
Structures Act and other applicable national legislation, exercise
executive authority in the area of that other municipality.
(3)
A municipality exercises its legislative or executive authority by-
....
(a) administering
and regulating its internal affairs and the local government affairs
of the local community;
...;
and
(n) doing
anything else within its legislative and executive competence.
(4)
A decision taken by a municipal council or any other political
structure of the municipality must be recorded in writing.”
In
view of these provisions I am satisfied that the council was acting
well within its powers when it decided whom to appoint
as
chairperson of the inquiry and in instructing the acting municipal
manager to implement its decision. It was not necessary
therefore
for the council to pass a motion of no-confidence in the mayor as a
prelude to removing her from office as the applicant’s
representative suggested when asked what a council was to do in such
circumstances.
Non-compliance
with section 29(1) of the Municipal Structures Act
There
is a further attack on the validity of the appointment of Williams
as a chairperson, which was belatedly raised by the applicant.
The
applicant contends that the appointment of the chairperson of the
applicant’s disciplinary enquiry was made in a council
meeting
that was not properly constituted in terms of
section 29(1)
of the
Local Government: Municipal Structures Act 117 of 1998
.
Section
29(1)
of the
Local Government: Municipal Structures Act 117 of 1998
states:
“
29
Meetings of Municipal Councils –
The
speaker of a municipal council decides when and where the council
meets subject to
section 18(2)
, but if a majority of the councillors
request the speaker in writing to convene a council meeting, the
speaker must convene the
meeting at the time set out in the
request.”
Section
18(2)
of the same Act stipulates the requirement that the council
must meet at least quarterly and is of no relevance to this matter.
At
the special in-committee meeting of 14 November 2011, the council
resolved to appoint Manoko as the prosecutor in the enquiry
and that
the South African Local Government Association (‘SALGA’)
or the MEC be requested to appoint a Presiding
Officer if the
hearing was held. As it turned out Ms L Tredoux of SALGA was not
available to chair the enquiry and at the postponed
in-council
meeting held on 5 December 2011, the resolution appointing Williams
as the chairperson, was adopted.
Somewhat
belatedly, Mr Scholtz, challenged the validity of the meeting
convened on 5 December 2011. The meeting had originally
been
convened on 2 December 2011 to deliberate on the appointment of a
chairperson of the enquiry, given Tredoux’s unavailability.
However, the speaker postponed this meeting to 6 December 2011.
Despite this, the councillors convened the meeting a day earlier
on
5 December 2011, which is a date on which the speaker was unable to
attend. On that day, the speaker wrote a letter to the
Deputy
Director General of Local Government and Traditional Affairs
complaining that thirteen councillors were meeting in his
absence on
matters unknown to him and had elected a chairperson despite him
remaining in office. He complained that this was
contrary to the
provisions of section 29(1) of the MSA.
There
was no evidence that the renegade councillors had approached the
speaker to request him to convene the meeting on 5 December
instead
of the following day which he had chosen for the postponed meeting.
Specific
performance of the applicant’s contractual rights
The
applicant also contends that steps taken contrary to the provisions
of the regulation are a material breach of this contract
of
employment. The applicant asserts his contractual rights
independently of any argument about whether or not the council acted
within its powers when it took the steps it did. In so far as the
steps taken by the council were not in strict conformity with
the
regulations, it is correct that they breached the applicant’s
contract of employment. Nevertheless, not every breach
of a contract
is a material one and not every breach of contract warrants an order
of specific performance.
What
is material in the regulations from the applicant’s
perspective is that claims of misconduct against him must be
considered by the council and it may only take disciplinary steps
against him after considering a report by an independent
investigator.
In this instance, I do not believe that the
inconsistencies between the strict letter of the regulations and
what actually transpired
amounted to a material breach of the
council’s obligations towards him. Moreover, to order specific
performance of some
of the prior steps,
such
as resubmitting all the subsequent charges to another investigation,
would be an unjustifiable imposition
on the council and would make no difference to the applicant other
than to delay the commencement
of disciplinary proceedings further.
Specific performance is a discretionary remedy
2
and in exercising its discretion a
court may have regard to the injustice which an order of specific
performance may give rise
to.
3
Because I also believe that no
material breach of the applicant’s contract of employment was
caused by less than strict
adherence to the regulations, an order of
specific performance would not be appropriate in this context.
Conclusion
In
the light of the reasons above I reached the conclusion set out in
the judgment handed down on 13 December 2011, namely:
“
I
find that the appointment of the chairperson of the applicant’s
disciplinary enquiry was made by a council meeting that
was not
properly constituted in terms of
section 29(1)
of the
Local
Government: Municipal Structures Act 117 of 1998
.”
Order
The
order below was consequently issued on the same date:
Accordingly,
the respondents are interdicted from proceeding with the
disciplinary enquiry involving the applicant which was
scheduled to
commence on 8 December 2011, until such time as it has properly
appointed a chairperson in terms of the powers
of the council of
the first respondent.
No
order is made as to costs.
___________________
R Lagrange, J
Judge of the Labour Court
of South Africa
APPEARANCES:
FOR THE APPLICANT:
W.Scholtz instructed by Scholtz Attorneys
FOR THE RESPONDENT: Eric
H Louw instructed by Eric Louw Attorneys
1
GN
344,GG34213,21/04/2011
2
See
Benson
v SA Mutual Life Assurance Society
1986
(1) SA 776
(A)
at
777A-B, viz:
[zRPz]
1986 (1) : at
“
Even
where performance is possible it is not always ordered because the
Court has a discretion in the matter. This discretion
must be
exercised judicially but is not confined to specific types of cases,
nor is it circumscribed by rigid rules.”
3
See
Haynes v Kingwilliamstown Municipality
1951 2 SA 371
(A)
at 378H–9A:
“
(W)here
it would operate unreasonably hard on the defendant, or where the
agreement giving rise to the claim is unreasonable,
or where the
decree would produce injustice, or would be inequitable under all
the circumstances.”