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[2012] ZALCJHB 158
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SAMWU obo Monyama and Others v Greater Tzaneen Municipality (J3219/12) [2012] ZALCJHB 158; [2013] 6 BLLR 597 (LC); (2013) 34 ILJ 1781 (LC) (11 December 2012)
Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: J3219/12
In the matter between:
SAMWU
obo MONYAMA AND OTHERS
....................................................
Applicant
And
GREATER TZANEEN MUNICIPALITY
....................................................
Respondent
Heard: 06 December 2012
Delivered 11 December 2012
Summary: Urgent application. Jurisdiction to interdict acting
appointment- Section 56(a) of the Local Government Systems Act.
JUDGMENT
Molahlehi J
Introduction
This is an urgent application in terms of which the applicants,
inter alia, seek an order declaring the appointment of the third
respondent as acting Director: Corporate Service to be null and void
and to interdict the continued acting appointment of the
third
respondent. Furthermore the applicants seek an order directing the
first respondent to advertise the position in question.
Before dealing with the merits of this matter I need to indicate
that in my view there can be no doubt that this court has
jurisdiction to entertain the applicants’ claim because the
acting appointment as envisaged in section 56 of the Systems
Act
falls within the purview of the “employment and labour
relations” as envisaged under section 157 (1) of the Labour
Relations Act.
1
The relief sought by the applicant is based on the provisions of
section 56 (c) of the Municipal Systems Act (the Systems Act)
which
provides that a person:
“
May
not be appointed to act for a period that exceeds 3 (three) months:
provided that a Municipal Council may, in special circumstance
and on
good shown apply in writing to the MEC for Local Government to extend
the period of appointment contemplated in paragraph
(a), for a
further period that does not exceed 3 (three) months.”
The applicants are seeking a final order on an urgent basis and
therefore their case has to satisfy the following legal
requirements;
a clear right, well-grounded apprehension of
irreparable harm and absence of other adequate relief.
2
The essence of the applicants complaint is that by allowing the
third respondent to act in the position of Director: Cooperate
Services for a period of more than three months contrary to the
provisions of section 56 (3) of the Systems Act, the second
respondent has denied the applicant's members the right to apply for
that position.
The third respondent is according to the applicant a member of the
National Executive Council of the African Youth League (ANCYL),
and
was appointed as the Acting Director: Cooperate Services with effect
from 10 October 2011, "until the position is filled."
The
third respondent has been in the acting position for over a year.
The applicants contend that the position, to which the third
respondent has been appointed to act in, is one where he reports
directly to the municipal manager and accordingly that appointment
has to comply with the provisions of section 56 of the Systems
Act.
The position in question was advertised at the beginning of 2012,
but could not be filled because the applicant objected to the
third
respondent being considered for appointment. The applicant objected
to the appointment of the third respondent because
according to them
he did not qualify for the position. It would seem that the acting
appointment of the third respondent was
extended subsequent to
failure to make an appointment after the interview.
The applicant further testified in the founding affidavit that they
recently discovered a resolution extending the acting appointment
of
the third respondent, until the end of January 2013.
The right which the applicant seeks to assert arises from the
provisions of section 156 (c) of the Systems Act. Section 56 of
the
Systems Act deals with the appointment of a person to act in a
vacant position of director who reports directly to the municipal
manager.
The powers to appoint an acting manager who is directly accountable
to the municipal manager rests with the Municipal Council
in terms
of section 56 (1) (a) of the Systems Act.
3
The appointment is of cause done in consultation with the municipal
manager.
The Municipality Council can appoint an acting manager for a period
not exceeding three months. The acting appointment can only
be
extended for a period also not exceeding three months and that in
terms of section 56 (1) (c) can be done with the approval
of the
Member of the Executive Council for Local Government (MEC). The MEC
can extend the acting of a person on "special
circumstances and
on municipality showing good cause for the extension."
4
The acting appointment has to be made on the basis of skills,
expertise, competency, or qualification. The acting appointment
would be null and void if the acting person does not satisfy these
requirements.
5
In terms of section 56 (3) of the Systems Act, the municipality is
obliged to advertise a director's post nationally in order
to
attract candidates as widely as is possible. And section 56 (5)
6
of the Systems Act obliges the MEC for Local Government to take
steps within 14 days of becoming aware of an improper appointment
of
the acting director.
Section 56A (1) of the Systems Act
7
prohibits the appointment of a person to act in the director's
position if that person holds an office in a political party be
it
temporary or permanent.
In light of the above I am of the view that the applicant has made
out a case warranting an urgent interdict. The applicants
have also
made out a case warranting the intervention which the court would
ordinarily not do. This relates to having to order
the municipality
to advertise the position. The intervention is warranted because of
both the continued unlawful conduct of the
second respondent
resulting in the denial of the first applicant’s members of
the right to contest the position in a fair
and proper manner.
As indicated earlier this matter was unopposed in the interest of
relationship building between the parties, I do not believe
that
costs should be allowed to follow the results.
Order
In the premises the following order is made:
The non-compliance with the Rules of the Court in relation to time
for service of documents is condoned and the matter is treated
as
one of urgency.
It is declared that the Second Respondent’s decision to
appoint the Third Respondent to act as Director: Corporate Service
for a period longer than the period prescribed in Section 56 of the
Local Government: Municipal Systems Act as amended, is
null and
void;
The Third Respondent is interdicted from continuing to act in the
position of Corporate Services;
The Second Respondent is ordered to advertise the position of
Director: Corporate Services in accordance with the provisions
of
section 56 (3) of the Local Government: Municipal Systems Act,
within 1 (one) month of date of this order.
_______________________
Molahlehi J
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: Maenetja Attorneys
For the Respondent:
1
The
relevant part of Section 157 of the Labour relations Act, for the
purpose of this judgement reads:
“
Jurisdiction
of Labour Court
(1) Subject
to the Constitution and section
173, and except where
this
Act
provides
otherwise, the Labour Court has exclusive jurisdiction in respect of
all matters that elsewhere in terms of
this
Act
or
in terms of any other law are to be determined by the Labour Court.
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any
fundamental
right entrenched in Chapter 2 of the Constitution of the
Republic
of South Africa, 1996, and arising from -
(a) employment and from labour
relations;
(b) any
dispute
over the
constitutionality of any executive or administrative act or conduct,
or any threatened executive or administrative act
or conduct, by the
State in its capacity as an employer; and
2
The
requirements for an urgent applications are set out in a number of
case over the years dating back to Setlogelo v Setlogelo
1914 AD
221.
3
Section
56 (1) (a) of the Systems Act reads as follows:
“
A
Municipal Council, after consultation with the Municipal Manager,
must appoint-
A Manager directly accountable
to the Municipal Manager; or
An acting Manager directly
accountable to the Municipal Manager under circumstances and for a
period prescribe
4
Section
56 (1) (c) of the Systems Act reads: “A person appointed in
terms of paragraph (a) (ii) may not act for a period
that exceeds
three months: Provided that a Municipal Council may, in special
circumstances and on good cause shown, apply in
writing to the MEC
for Local Government to extend the period of appointment
contemplated in paragraph (a) , for a further period
of appointment
contemplated in paragraph (a) for a further period that does not
exceed three months.
5
Section
56 (2) of the Systems Act reads: “A decision to appoint a
person referred to in subsection (1) (a) (ii), and any
contract
concluded between the Municipality and that person in consequence of
the decision, is null and void if-
that person appointed does not
have the prescribed skills, expertise, or
the appointment was otherwise
made in contravention of this Act, unless the Minister has, in terms
of subsection (6) has waived
any of the requirements listed in
subsection (1)(b).
6
Section
56 (5) of the Systems Act reads: “If a person appointed to a
post in subsection (1) (a) in contravention of tis
Act, the MEC for
Local Government must, within 14 days of becoming aware of such
appointment, take steps to enforce compliance
by the Municipality
with tis Act, which steps may include an application to a Court for
a declaratory order on the validity of
the appointment or any other
legal action against the Municipality.”
7
Section
56 A (1) of the Systems Act reads as follows: “A municipal
manager or a ma
nager directly accountable to a municipal
manager may not hold political office in a political party, whether
in a permanent,
temporary or acting capacity.”