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[2012] ZALCJHB 55
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Tsietsi v Mmabana Arts, Culture & Sports Foundation and Another (J 1307/12) [2012] ZALCJHB 55 (22 June 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
case
no: J 1307/12
In the matter between:
BANDA GABRIEL TSIETSI
Applicant
and
MMABANA ARTS, CULTURE &
SPORTS FOUNDATION
First
Respondent
TEBOGO MODISE (
N.o.
),
mec OF SPORT, ARTS & CULTURE NORTH WEST
Second
Respondent
Heard
:
11 June 2012
Delivered
:
22 June 2012
Summary:
(Urgent – interim relief –
locus
standi
of MEC).
JUDGMENT
LAGRANGE, J
Background
This is an urgent application in which the applicant seeks the
following relief, pending the outcome of review proceedings to:
declaring his suspension invalid, unlawful and of no legal force and
effect and setting it aside, alternatively uplifting it
with
immediate effect;
ordering the first respondent to reinstate the applicant immediately
and to forthwith comply with his contract of employment
and
conditions of service, and
interdicting the respondents from terminating his contract of
employment for any unlawful reason or contrary to the purposes
of
section 13 (2) (c) of the Mmabana Arts, Culture and Sports
Foundation Act, 7 of 2000, pending the final determination of his
application in the case number J1308/12 of 28 May 2012.
For good measure, and as an alternative to the last prayer, the
applicant sought the urgent determination of his application
under
case J1308/12, and similar interim relief to that mentioned above.
The relief sought under case J1308/12 is in essence the same as the
interim relief, except in final form, with an additional
prayer to
declare the applicant's employment as the Chief Financial Officer
(‘the CFO’) of the first respondent lawful.
Material facts
For the most part, the material facts relevant to the application of
common cause. From mid October 2011 until the end of March
2012, the
applicant provided financial services to the Foundation through his
own company, Maemo Business Processes Consulting
(Pty) Ltd, which
included the work of the Foundation’s CFO. This contract was
to run from 17 October 2011 to 30 April 2012.
Coincidently, the
applicant was also offered employment as an acting CFO of the
Foundation on a month-to-month basis commencing
on 18 October 2011
at a salary of R864,000-00 per annum. The applicant simply reasserts
in his replying affidavit, that he was
engaged through the services
of his company to perform the work, and never explains how he came
to be offered the employment
contract, which was signed by the
acting CEO of the Foundation, Mr T Motlhamme, on October 2011, the
very same day the consultancy
contract was concluded by the acting
CEO and the applicant, acting on behalf of his firm.
The consultancy contract took effect on 17 November 2011, so it
appears on the face of the documents that the applicant was employed
as an acting CFO for one month before the consultancy contract took
effect. The monthly consultancy fee in terms of the contract
was R
72,000, which was exactly the same as the monthly salary the
applicant would have received as an acting CFO.
During the first quarter of the same year the applicant applied for
a position as CFO at Setsoto Local Municipality and was advised
in
the middle of March that he had been successful. He then notified
the responsible MEC, Mr PChauke, and the CEO of the Foundation,
Mr
TMotlhamme, that he could no longer continue rendering services to
the Foundation.
The position of CFO of the Foundation was advertised, but before the
normal recruitment process was completed the applicant was
fortunate
enough to secure employment as an acting CFO of the Foundation for a
fixed term period of three years starting on 1
April 2012. The
ostensible reason for bypassing the ordinary recruitment process was
that the Foundation could not afford to
lose the applicant as he was
performing a critical function. Although it was argued that the
reference to an acting position
was a mistake, it is noteworthy that
this mistake was repeated in the contract of employment which also
referred to the applicant
being employed as an acting CFO. In the
preamble of contract of employment it is recorded that the
Foundation was represented
by Motlhamme, as the CEO, "as
mandated by the MEC of Sports, Recreation, Arts and Culture, Hon. H
Chauke in his capacity
as the Board.”
On the same day he was appointed to the Foundation and despite the
‘critical’ function he supposedly performed for
it, the
applicant was informed by the MEC that he was being seconded to act
as the CFO of the Department of Sport, Recreation,
Arts and Culture
(‘the Department’) with effect from 2 April 2012 until
further notice. The MEC’s letter also
advised that he was
expected to assist the Foundation when required, but that in order
to perform his responsibilities properly
he would be required to
dedicate much of his time to the Department.
Sometime after this, Chauke was replaced by Ms T Modise as the MEC
for the Department, the second respondent in this matter.
On 9 May
2012 she sent the applicant a letter which read:
"This letter serves to inform you that after careful
consideration I have decided to
terminate your secondment
to
the Department of sport, arts and culture and from Mmabana with
immediate effect.
Whilst I am
still reviewing your appointment with Mmabana
you
are
requested not to revert back to the institution
until
further notice.
Thank you very much for the contribution you have made in the
Department."
(Emphasis added)
On 15 May 2012, the applicant sent a letter through his erstwhile
attorneys, Goldberg Attorneys, in which they pointed out that
the
applicant, was employed on a fixed term contract of three years and
called upon the MEC to reverse the decision to terminate
his
employment. Clearly, the applicant initially misconstrued the import
of the MEC's initial letter, believing that his employment
by the
Foundation rather than his secondment to the Department had been
terminated. The following day, the MEC wrote again to
the applicant
regarding his possible termination of appointment as acting chief
financial officer of the Foundation. After pointing
out that the
Foundation was established by the North-West provincial legislature
in the Mmabana Arts, Culture and Sport Foundation
Act, 7 of 2000,
(‘the Mmabana Act’) the letter continues:
"3 the said Act makes provisions for, inter-alia, the
composition and establishment of members of the board of directors to
oversee the affairs of the MmabanaFoundation and take all necessary
decisions in the best interests of the art, culture and sporting
fraternity within the North West province.
4 In the absence of a Board of Directors, the responsible member
of the executive Council is clothed with the necessary authority
to
substitute and act on the board’s stead and thereby takes all
necessary decisions on behalf of the board.
5 In pursuance of the objectives of the board and as more fully
contained in section 13 of Act 7 of 2000, the Acting Chief Executive
Officer caused an advert to be published in various publications,
including the City Press of 11 March 2012, whereat applications
were
invited to fill the vacant position of Chief Financial Officer of the
Mmabana Foundation.
6 The closing date for the application sought as alluded to above
was the 30th March 2012.
7. Notwithstanding the advertisement as for stated, the Acting
Chief Executive Officer of the employment as the Acting Chief
Financial
Officer on a fixed term contract of employment for a period
of three years, effective 1 April 2012.
8 It is my considered view that the conduct of the acting chief
executive officer as adumbrated in paragraph 7 above did choose to
capitalise that not only amount to a deliberate abuse of the powers
vested on him by the act but also amounted to a flagrant disregard
of
the recruitment process of the Mmabana Foundation and borders not
only on possible nepotism but had overtones of corruption.
9 My aforesaid conclusion is based on the fact that it is unheard
of and highly unusual for an acting appointment to be made on a
fixed
term contract of three years with an option to renew, especially in a
public entity like the Mmabana Foundation.
10. I therefore consider your appointment to be unlawful and void
ab initio for non-compliance with the purports and objectives of
section 13 of act 7 of 2000 as well as the recruitment process of the
MX Foundation.
11. You are therefore afforded an opportunity to show cause, by
not later than Monday, the 21st May 2012 at 10h00, as to why I should
not terminate your purported appointment as the Acting Chief
Financial Officer of the Mmabana Foundation forthwith in accordance
with the provisions of section 13 (2) (c) of Act 7 of 2000.”
In a replying letter of 21 May 2012, the applicant refused to take
up the invitation to provide reasons for not terminating his
appointment, because he was of the view that he had already been
dismissed. It was only when he consulted his present attorneys
of
record on 23 May 2012 that he was made aware that no final decision
had been made to dismiss him, but that he clearly had
been
suspended. On the same day a letter was sent to the MEC demanding
that his services not be terminated and that he be immediately
allowed to return to work at the Foundation. No reply was
forthcoming by 25 May 2012 as requested and the applicant then
launched
this application on 29 May for a hearing on 31 May 2012.
Merits
Urgency
I am satisfied that between 21 May and 29 May 2012, the applicant
acted with sufficient urgency in bringing this application,
though
the initial hearing date should not have been scheduled a mere two
days after launching the application. However, in view
of the
postponement of the hearing until 11 June 2012 the second respondent
had more time to file an answering affidavit and
was not prejudiced
in that regard.
Prima facie right
The central issue concerning the intrinsic merits of the applicant’s
entitlement to remain in his job are inextricably
entangled with the
question whether or not his appointment, and his suspension, or
alternatively termination, was lawful. This
is directly linked to
the authority of the erstwhile MEC to mandate his appointment and
the current MEC to terminate or suspend
it. The applicant also
raised the issue of authority in relation to the current MEC’s
authority to oppose his application.
In order to deal with this
issue, the legislative framework must be outlined.
The Mmabana Act 7 of 2000
The preamble to the Mmabana Act, identifies among other objectives
of the legislation the following:
“
for purposes of developing the artistic
and sporting talents of the people of the Province; to assist in the
development, fostering
and promotion of culture through development
of individuals and groups of people interested in the arts, cultural
and sporting
activities;
to
provide for the management and control of the Mmabana Arts, Culture
and Sport Foundation through the establishment of the Board
of
Directors
;...”
(emphasis added)
Section 1 of the Act identifies the CEO as the Executive Director of
the Foundation appointed in terms of s 14 of the Act, and
the
responsible member as the MEC. Section 2(3) of the Act provides:
“
(3) From and after the commencement of
this Act and subject to the provisions contained herein,
the
Foundation shall be controlled and represented by the Mmabana Arts,
Culture and Sport Foundation Board of Directors
as hereafter provided, and all acts of that Board shall be deemed to
be acts of the Foundation.”
(emphasis added)
In terms of s 3 (1) of the Act, after advertising vacancies for the
board, the MEC appoints the board consisting of at least
six
members, which includes the CEO as Executive Director and
ex
officio
member of the board, for a period of three years on
terms and conditions determined by the MEC. Section 8(4) of the Act
further
provides that the CEO has no voting powers on the board.
Under the provisions of section 5(1) of the Act, the powers of the
board
include, among others :
“
5 (1) In addition to the powers and
functions conferred and imposed on the Board elsewhere by or in terms
of this Act, or any other
law, the Board shall, subject to the
provisions of this Act, have all such powers and be charged with all
such functions and duties
as are necessary for the purpose of
promoting the objectives of the Foundation as stated in section 2(2),
and in order to duly
and effectively manage, control and promote the
affairs, business and interests of the Foundation, and, without
derogating from
the generality of the aforegoing
,
the Board-
(a)
may enter into contracts and conclude agreements and
generally perform such acts and do such things as may be necessary
for the
proper exercise of its functions and duties
;
...
(f) shall be responsible for laying down and approving procedures,
rules and regulations for the proper management of the Foundation;
...
(h) shall,; subject to the provisions of section 11,
determine
all matters relating to the terms and conditions of service of any
officer or employee of the Foundation, and all matters
relating to
the disciplining of staff and their suspension from office or the
termination of their services
.”
(Emphasis added)
There are other provisions pertaining to the Executive Director’s
appointment which should be mentioned. Section 8(1) and
8(1)(b)
provide that the Executive Director is only appointed by the MEC “in
consultation with” the Board and “the
procedure followed
by the Board and the Responsible Member in the appointment of the
Executive Director shall be in accordance
with the principles of
transparency and consultation.” Further, Executive Director
“shall be the accounting officer
for the Foundation and,
subject to the control of the Board, be the Chief Executive Officer
of the Foundation:..”
1
Lastly, s8 (4) provides that the board may delegate any of its
powers, functions or duties in terms of the Act to the Executive
Director.
As regards other staff of the Foundation, s 13(1) provides that the
staff establishment consists of such posts “as the
Board in
consultation with the Responsible Member may from time to time
determine” and s 13(2) provides that the board
may make
appointments to the posts.
It is common cause that at all relevant times, no board of the
Foundation has been constituted. Before the application was
launched, the second respondent took the view that she had the
necessary authority to act in the board’s stead, but in her
answering affidavit she conceded she did not. Anomalously, the
second respondent purported to give notice in her answering
affidavit to terminate the applicant’s contract having not
adopted this course of action previously despite her letter giving
the applicant an ultimatum to give reasons why she should not do so.
The applicant in turn objects to this step arguing that
it is in
breach of the interim rule issued on 31 May 2012, by Cele C, in
terms of which the applicant was interdicted from doing
so, pending
the final determination of the matter.
By contrast, the applicant contends that his appointment was valid
because as the preamble to his contract makes clear, it was
concluded between him and the acting CEO, Motlhamme, who was acting
on the specific mandate of the erstwhile MEC. In other words,
the
source of authority for his appointment rested on the authority of
the MEC to appoint him. The applicant adopts the argument
initially
made by the second respondent in her letter of 16 May 2012, namely
that in the absence of a Board of Directors, the
responsible member
of the executive Council is clothed with the necessary authority to
substitute and act on the board’s
stead and thereby takes all
necessary decisions on behalf of the board.
In support of this argument, the applicant claims that the MEC
fulfils the functions of the board in its absence as the MEC stands
in the same relation to the Foundation, which is a corporate body,
as a sole shareholder does to a company. The MEC must fulfil
the
functions of the board because the MEC appoints the board.
As an alternative argument about the source of the MEC’s
authority, the applicant relies on the provisions of
s 49(1)
of the
Public Finance Management Act 1 of 1999
.
In the further alternative, the applicant claims that even if his
appointment is invalid, it must stand until such time as it
is set
aside on review.
Clearly, whether or not the MEC has authority to act in the board’s
stead, has implications for the validity of actions
taken by the
former and current MEC in relation to the applicant’s
appointment and suspension, or alternatively, termination
of his
services.
According to the applicant it also has implications for the second
respondent’s authority to oppose his application. Before
turning to the consequences of there being no duly appointed board,
it is appropriate at this juncture to address the current
MEC’s
alleged lack of authority to oppose the application.
Applicant’s in limine objection: MEC’s lack of
authority to oppose
FoundationFoundationFoundationFoundationFoundationFoundationFoundationFoundationFoundation
In his replying affidavit, the applicant seizes on the second
respondent’s change of view about her legal authority to
act
in the board’s stead if no board was appointed. Although the
applicant does not subscribe to this view himself, as
he maintains
he was lawfully appointed by the acting CEO fulfilling the mandate
of the former CEO, he argues, in effect, that
if he is wrong, then
the application cannot be opposed by the second respondent as she
has no more authority than the previous
MEC to act on behalf of the
Foundation. As such she has no authority to oppose the application.
In this respect, I agree with the second respondent that the
applicant is confusing the issue of whether the MEC has
locus
standi
to oppose his application, with the question of whether
she has authority to act on behalf of the Foundation (the first
respondent).
The second respondent’s
locus standi
does
not rest on whether or not she may act in the name of the first
respondent.
Rather it lies in her interest as the MEC as the member of the
provincial executive committee responsible for the Foundation.
In
relation to the appointment of the board and the CEO these are
matters that the MEC has a direct hand in terms of the provisions
of
the Mmabana Act. The determination of the staff establishment for
the Foundation is something that the board is supposed to
determine
in consultation with the MEC. The MEC must approve the banking
arrangements for the investment of funds which are surplus
to the
Foundations immediate expenditure requirements, and is responsible
for tabling the Foundations audited statements to the
provincial
legislature for scrutiny.
2
Where the MEC has reason to believe that acts have been done in the
Foundation’s name which are at odds with the legislative
framework or good governance of the Foundation for which she bears
political executive responsibility, then clearly she has an
interest
in intervening where the internal governance mechanisms are not
functioning. In this instance, her concern is that the
appointment
of the applicant took place despite the application process for
obtaining potential candidates being incomplete.
In terms of her
accountability as the responsible member of the executive to the
provincial legislature, she can be called to
answer for poor
governance of the Foundation, particularly where she has failed to
appoint a board
3
.
As the member of the executive committee identified in the Mmabana
Act as the responsible member, she would have the primary
responsibility as a member of the provincial executive committee for
fulfilling the committee’s constitutional function
of
implementing the Mmabana Act.
4
I am satisfied that the second respondent has a real and substantial
interest in proceedings which raise the issue of the validity
of a
senior appointment to the Foundation and which also has financial
implications for the Foundation. Accordingly, quite apart
from the
fact that she is cited by the applicant as a respondent, she has
locus standi
to be a party to these proceedings in any event,
even if she cannot claim to act for the Foundation itself.
The authority to appoint Foundation staff
As mentioned, it is common cause that no board was appointed at all
material times relating to the applicant’s employment
as CFO
of the Foundation. It is also clear in terms of s 13(2) of the Act,
that the body given the power to appoint staff is
the board, once
staff posts have been determined by the board in consultation with
the MEC under s 13(1). The board does have
the power to delegate its
functions to the Executive Director under s 12(4), but if the board
does not exist he or she cannot
exercise any delegated power from it
to make staff appointments. Moreover, an executive director can only
be appointed by the
MEC in consultation with the board. In the
absence of a board, the appointment of a CEO in the absence of the
board cannot be
valid.
It is understandable that the applicant seeks to impute authority,
which is not sourced in the statute, to the MEC to assume
the
board’s responsibility to appoint staff. If he had to rely on
the Mmabana Act as the source of the MEC’s power
to do so and
to delegate that authority to the CEO there is nothing on which he
can ground his claim to have been properly appointed.
Plainly it is
the provisions of that Act which sets out who may appoint staff. It
is equally plain, in the absence of a duly
constituted board, there
is no other person or body who or which is empowered by the statute
to perform that function.
It is one thing to acknowledge that the MEC has responsibility to
establish the board in accordance with the requirements of
the Act,
it is quite another to impute to the MEC the authority to run the
Foundation in the place of a properly constituted
board, if he or
she fails in his duty to appoint one. The applicant can cite no
provision of the Mmabana Act and provides no
alternative basis why,
on a proper interpretation of the statute, such a power must be
implied because it is reasonably necessary
to fulfil the objects of
the legislation. The Act does provide the means for the MEC to staff
the organisation, by establishing
the board and appointing an
Executive Director in consultation with the board through a process
which is consultative and transparent.
Accordingly, there is no need
for an MEC to resort to some other mechanism for the appointment of
staff, where it is the MEC’s
own inaction which prevents that
mechanism being used.
Clearly, if the merits of the validity of the applicant’s
entitlement to his appointment have to be considered he will
face
considerable difficulty in asserting his claim. So to the brief
analysis above reveals the second respondent’s own
difficulties in asserting a right to act on behalf of the first
respondent.
Consideration
of the MEC’s attack on the validity of the applicant’s
appointment.
The applicant is asserting a right to give effect to a contract of
employment, pending the ultimate determination of the validity
of
that contract. The second respondent has directly challenged the
enforceability of that contract on the basis that it was
concluded
without the necessary authority. The applicant has two responses to
this. Firstly, he argues that if the validity of
the contract is in
issue, that can only be decided if the applicant brings an
application to invalidate it. Otherwise, like all
potentially
invalid administrative action it remains effective until a court
decides otherwise. Secondly, he argues that the
second respondent is
estopped from denying the validity of the applicant’s
appointment in view of her predecessor’s
actions. For the
reasons which follow it is not necessary to consider the latter
argument.
The general statement of principle to the effect that an
administrative act remains valid until set aside, is not in
contention.
The issue in this case is whether the second respondent
was entitled to raise the invalidity of the applicant’s
appointment
as a defence in these proceedings. In the SCA decision
in
Oudekraal Estates (Pty) Ltd v City of Cape Town &
others
2004 (6) SA 222
(SCA)
the court set out the
applicable principles governing when the validity of an
administrative act can be pronounced upon by a court
if a party
raises it as a collateral attack which the court characterised as a
“challenge to the validity of the administrative
act that is
raised in proceedings that are not designed directly to impeach the
validity of the administrative act.”
5
The SCA held that a collateral challenge would be available in the
following circumstances :
“
It is in those cases - where the subject
is sought to be coerced by a public authority into compliance with an
unlawful administrative
act - that the subject may be entitled to
ignore the unlawful act with impunity and justify his conduct by
raising what has come
to be known as a 'defensive' or a 'collateral'
challenge to the validity of the administrative act.”
In this instance, it is the MEC who seeks to set aside the action of
her predecessor, so it is the administrative authority seeking
to
correct its own actions. Whatever the substantive merits of her
claim to invalidate the applicant’s employment might
be, I
think that she ought to have launched proceedings to set aside the
previous decision rather than proceeding to act on the
basis of the
correctness of her views on the invalidity of the applicant’s
appointment.
When this matter was heard on 11 June, the second respondent
belatedly handed up a notice of motion to review and set aside the
applicant’s appointment as a matter of urgency, relying on the
allegations made in its answering affidavit. The intention
of doing
so was presumably to cure any failure to have brought such an
application in the event that a collateral attack on the
validity of
the applicant’s appointment is not permissible in the
circumstances. The applicant retorted that the MEC could
not
terminate his services in the face of the interim rule issued on 31
May 2012, in terms of which the MEC was interdicted from
terminating
the applicant’s contract of employment for any reason not
recognised by law, pending the final determination
of the matter. I
agree that the MEC’s purported termination flies in the face
of that order, for the very same reason that
I do not think a
collateral attack is permissible. As the MEC obviously believes that
she may presume the original appointment
to be invalid, and
therefore her purported termination of his employment is one that
would be valid in law, I doubt that her
action can be construed as
an act of contempt. In any event, that is not something I need to
determine in these proceedings.
While there is nothing in principle that would prevent the applicant
launching her counter-application on an urgent basis to
set aside
the decision of her predecessor, that is a matter which the
applicant clearly had not had a reasonable opportunity
to consider
and respond to as a distinct claim before 11 June 2012, even if the
counter application essentially arises from the
same factual
circumstances and raises issues already on the table in this
application. Accordingly, that counter application
was brought on
insufficient notice and must fall to be dismissed for lack of
urgency in the sense that the notice of the application
was too
short.
In the absence of being able to entertain a collateral attack, I am
bound to accept that the applicant was appointed for a three
year
period by the former MEC and until that action is set aside as
invalid I must accept, albeit reluctantly, that his appointment
stands. Moreover, since the second respondent has not appointed a
board, and since she cannot fulfil its functions in its absence,
she
cannot act in the first respondent’s name, even though she has
standing to act in her own capacity. It follows also
that the MEC
had no authority to suspend the applicant as she purported to do,
and she can be interdicted from attempting to
do so.
As the matter stands before me now, the MEC cannot act in the first
respondent’s name and therefore has no authority to
suspend or
terminate his services. In so far as the first respondent can be
represented by the acting CEO, it is not opposing
the relief sought.
In any event whether or not he is any better placed to speak on the
first respondent’s behalf, the MEC
cannot, so the matter
remains unopposed by the first respondent. The MEC is not without a
remedy as she can still apply to set
aside his appointment for want
of validity. For the reasons mentioned I was not willing to
entertain her urgent application to
do so in the proceedings of 11
June 2012, but there is no reason, in principle, why such an
application could not be re-launched
on more adequate notice.
Relief
Since the applicant has essentially been able to avoid the
collateral attack there is no reason to grant the interim relief
sought, as I believe he has demonstrated a clear right not to be
suspended or dismissed by the MEC acting on behalf of the first
respondent.
The applicant has brought these proceedings pending the outcome of
his application under case J 1308/12 to have his employment
as
acting CFO declared valid and lawful, which he seeks to have heard
on an urgent basis. I agree that this matter should be
accelerated,
in view of the seniority of the post he holds and the cost of his
remuneration to the first respondent. Accordingly,
it will be
appropriate in my view to set the main application down on a
relatively urgent basis.
Costs
Although the applicant is successful in obtaining interim relief, I
believe that the equity and fairness of a cost award will
be easier
to decide when the main application is heard and the substantive
merits are decided. Accordingly, costs will not be
determined at
this juncture.
Order
In light of the above, an order is made in the following terms:
It is directed that the Applicant’s application under case
number J 1308/12 dated 28 May 2012, be finally determined as
a
matter of urgency on 27 July 2012 at 10h00 or as soon thereafter as
the matter may be heard;
The respondents are restrained and interdicted from terminating the
applicant’s contract of employment for any reason(s)
not
recognised by law or contrary to section 13(2)(c) of the Mmabana
Arts, Culture and Sports Foundation Act 7 of 2000 pending
the final
determination of the matter on 27 July 2012.
The respondents are directed to comply with the Applicant’s
contract of employment, annexed as Annexure “C”
to the
Applicant’s founding affidavit pending the final determination
of the matter on 27 July 2012.
The second respondent’s counter application to set aside the
applicant’s appointment as invalid is dismissed solely
for not
satisfying the requirements of urgency.
Costs are reserved.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: M G Hitge instructed by Scholtz Attorneys
SECOND RESPONDENT: F A Boda with A Mosam instructed by KMT Attorneys
1
S
8(1)(b) of the Act
2
S
16(1) of the Mmabana Act.
3
For
example, an MEC can be called to account by the provincial
legislature which has a constitutional obligation to oversee the
functions of the executive. Section 114(2) of the Constitution of
the Republic of South Africa, 1996 (‘the Constitution’)
provides that :
“
a provincial legislature
must provide for mechanisms-
(a) to ensure that all provincial executive organs
of state in the province are accountable to it; and
(b) to maintain oversight of-
(i) the exercise of provincial executive authority
in the province, including the implementation of legislation; and
(ii) any provincial organ of state.”
4
Under
s 125(2)(a) of the Constitution, the general functions of provincial
executive committees assigned by s 125(2) of the Constitution
include the responsibility “to implement provincial
legislation in the province”.
5
At
244,[32] and fn 22