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[2013] ZALCJHB 137
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Rudman v Maquassi Hills Local Municipality and Another (J2931/12) [2013] ZALCJHB 137 (14 May 2013)

REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: J2931/12
In
the matter between:
RUDMAN
JANET
..................................................................................................
Applicant
and
MAQUASSI
HILLS LOCAL MUNICIPALITY
...........................................
First
Respondent
JONAS
RONALD
................................................................................
Second
Respondent
Heard: 22 November
2012
Delivered: 14 May 2013
Summary: First
Respondent’s resolution to suspend and consequent suspension of
a senior manager in first respondent’s
employment as Director:
Corporate Services invalid, illegal and void ab initio as both
actions were in breach of Clauses 4, 14
Disciplinary Procedure and
Code Collective Agreement binding on both employee and employer under
section 77(3) of the Basic Conditions
of Employment Act 75 of 1995.
These decisions also in contravention of sections 29(1)(2)
Local
Government: Municipal Structures Act 117 of 1998
;
sections 54A(4)
,
54A
(3)
Local Government: Municipal Systems Act 32 of 2000
; Item 2A of
Schedule 1 to the Local Government: Municipal Systems Amendment Act
2011 and the First Respondent’s Rules of
Order By-Law 1 of 2010
which sets out Rules of Order concerning Council Meetings. Labour
Court has jurisdiction and power to review
and set aside First
Respondent’s resolution to terminate the employee’s
contract of employment. Urgency in the matter
not self-created.
______________________________________________________________________
JUDGMENT
KUMALO,
AJ
Introduction
[1] On Tuesday, 13
November 2012, the applicant launched an urgent application in this
court seeking an order:
‘
2. Declaring the Applicant’s
suspension to be invalid, unlawful and of no legal effect and setting
the same aside, alternatively,
uplifting the Applicant’s
suspension with immediate effect;
3. The Respondents are directed to
reinstate the Applicant with immediate effect and to forthwith comply
with the Applicant’s
contract of employment and conditions of
service;
4. Ordering the 1
st
Respondent and the 2
nd
Respondent, in his personal
capacity, to pay the costs of this application on a scale as between
attorney and client, jointly and
severally, the one paying the other,
to be absolved.
5. Further and/or alternative relief.’
[2] By agreement the
matter was thereafter postponed by Basson J to 22 November 2012, in
order to allow for further pleadings. The
respondents delivered their
answering affidavits on 14 November 2012 and the applicant’s
replying affidavit with annexures
thereto on the 20 November 2012.
The above mentioned order was to operate as a rule nisi till the 22
November 2012.
Historical background
[3] The Applicant Mrs
Janet Rudman was appointed as the First Respondent’s Director:
Corporate Services, at that time known
as the Director:
Administration, on 25 August 2010, with effect from 26 August 2010
until further notice.
[4] The First Respondent
is Maquassi Hills Local Munucipality established and governed in
terms of section 12
Local Government: Municipal Structures Act, 117
of 1998
, with its principal place of business at 19 Kruger Street,
Wolmaranstad, 2630.
[5] On 14 August 2012, at
a meeting of the First Respondent Council, the Second Respondent was
appointed the Municipal Manager of
the First Respondent’s
Municipal Council, his appointment to commence on the 16 August 2012
for five years.
[6] In that capacity, the
second respondent is therefore the Head of Administration and the
Accounting Officer of the first respondent.
He is accountable for
duties and responsibilities to the first respondent as outlined in
the
Local Government: Municipal Systems Act, the
Local Government:
Municipal Structures Act and
the Municipal Finance Management Act.
[7] The facts surrounding
the present application relates to this appointment of the second
respondent as the Municipal Manager
of the respondent’s
council, which appointment the applicant contends was irregular and
unlawful, and has resulted in a long
and bitter acrimonious
litigation between the parties. The applicant has encapsulated it in
her founding and replying affidavits
to this application.
[8] On 21 December 2011,
the first respondent’s council, pursuant to the termination of
the services of the previous municipal
manager, appointed the second
respondent, then acting as Director: Community Services, as its
Acting Municipal Manager. In terms
of section 2
Local Government:
Municipal Systems Act, his
term of office was not to exceed 3 months.
[9] On the 6 March 2012,
the former MEC: Local Government and Traditional Affairs wrote a
letter to the Mayor of the first respondent,
confirming that he had
received a written complaint from the Speaker of the first
respondent’s council, which raised serious
allegations in
respect of irregular appointments of personnel, including that of the
Municipal Manager, by the first respondent.
On 7 March 2012, first
respondent’s Mayor replied by letter rejecting the MEC’s
instructions to halt all further appointments
of personnel at the
first respondent’s council.
[10] On 21 March 2012,
the applicant approached the first respondent’s mayor and
advised her that the issue of the term of
the acting municipal
manager should be brought, as a matter of urgency, before the first
respondent’s executive committee.
She disagreed.
[11] In the meantime, on
4 March 2012, the Speaker of first respondent had written to the MEC
requesting him to second a suitable
person to act as first
respondent’s municipal manager, in accordance with
section
54A(6)(a)
of the
Local Government: Municipal Systems Act 32 of 2000
,
as amended by
section 2
Local Government: Municipal Systems Amendment
Act 7 of 2011.
[12] On the 25 March
2012, at an In-Committee meeting of first respondent’s council,
under item ‘Appointment of Municipal
Manager: 4/3/3/1 [Mayor],
there were two seconded proposals that the Speaker received. She
requested councillors to indicate their
preference by a show of
hands.
12.1. Proposal A: The
vacant position of Municipal Manager must immediately be
re-advertised and the MEC be requested to second
an Acting Manager
until the post is filled, received 11 votes.
12.2. Proposal B: The
appointment of Mr Ronald Jonas and the seeking of the Municipal
Manager’s concurrence by no later than
28 May 2012 in order to
appoint the Municipal Manager before 1 June 2012, received 9 votes.
The following resolution
was passed:
‘
1. The vacant position of
Municipal Manager must immediately be re-advertised for the following
reasons:
a. The flaws identified in the
previous process
b. An outside and neutral person is in
a better position to address the following:
Poor discipline of the work force
Poor service delivery
Precarious financial status of the
municipality
2. The MEC must be requested to second
a suitably qualified person to Maquassi Hills as Acting Municipal
Manager until the post
of Municipal Manager is filled and further
request the MEC to revert back to the Mayor before 29 May 2012.’
[13] The first
respondent’s Speaker instructed the applicant to immediately
prepare and transmit by email a letter signed
by the Mayor to the MEC
advising him of this council resolution. The applicant prepared the
letter and emailed it unsigned as the
mayor was not available. On the
28 May 2012, she attended the offices of the Mayor to obtain her
signature. She refused to sign
it and told her that she would prepare
her own letter to the MEC which she did, but stated in it that the
Speaker had changed the
purpose of the meeting, even though it had
been communicated to him and thus ‘making it difficult to take
a decision as per
your request’.
[14] At about 16h30, on
the 28 May 2012, the second respondent went to the applicant’s
office. She berated her for sending
the letter to the MEC, accusing
her of being the cause of division amongst the councillors of first
respondent. She told her she
was terminating her employment and
instructed her to vacate her office immediately.
[15] On the 29 May 2012,
the applicant consulted her attorneys to launch an urgent application
to this court seeking reinstatement
as result of the unlawful
termination of her employment contract. The matter was set down for
hearing on 7 June 2012. On that day,
as the matter was being argued,
the first and second respondents delivered their answering affidavit,
deposed to by the second
respondent.
[16] Objection was raised
on behalf of the applicant to the authority of the deponent to depose
to an affidavit on behalf of the
first respondent. Basson J ruled
that the deponent’s
de facto
acting as the first
respondent’s Municipal Manager was unlawful, that he lacked the
authority to depose to an affidavit on
behalf of the first
respondent; the respondents’ affidavit deposed to by the second
respondent was struck off; the matter
was to be re-enrolled on the
urgent court roll by the Registrar either for Thursday 14 June or 15
June 2012.
[17] On the 19 June 2012,
the Speaker of respondent’s council wrote to applicant’s
attorneys informing them that council
had not appointed the firm of
attorneys to act on behalf of council and the Mayor nor had council
met and resolved that the applicant’s
urgent application should
be opposed.
[18] The applicant’s
urgent application was heard eventually by Van Niekerk J on 20 June
2012 and judgment was handed on 29
June 2012 in which he found that:
the first respondent Mayor did not have the authority to oppose the
urgent application on behalf
of the first respondent council; the
factual dispute between the first respondent’s Mayor and the
applicant had become academic
and the first respondent’s Mayor
was to pay part of the applicant’s costs in her personal
capacity.
[19] The applicant
returned to the workplace on 2 July 2012 and resumed her normal
duties. But that was not to be the end of her
travails at work. On
the 5 July 2012, she received a memorandum from the Municipal Manager
accusing her of acting dishonestly and
questioning her position and
authority and asking her to refrain from calling herself Acting
Director: Corporate Services as she
had not been appointed in
consultation with the Council and that her extension of acting
appointment had not been approved by the
MEC. Her initial reply was
“
no comment
” but later that day she replied by a
memorandum in which she pointed out that section 16 of the Municipal
Systems Amendment
Act 7 of 2011 made provision for her current
position and her appointment as the Acting Director: Corporate
Services could only
be terminated by a duly appointed Municipal
Manager by Council or as a result of a Council Resolution. She
pointed out that Messrs
Mphafudi, Mapholi (firm of attorneys) and the
Mayor were currently her subordinates in the light of her delegated
powers, which
she said were equal to that of a Municipal Manager. She
further pointed out that her conduct and her memoranda to her with
regard
to her powers constituted gross insubordination; that she
contemplated placing her on precautionary suspension pending an
investigation
and that she was entitled to institute disciplinary
proceedings against her.
[20] On the 10 July 2012,
the applicant received a memorandum in which she was notified that
the Executive Committee had resolved
on 9 July 2012 that she be
relieved from the position of Acting Director: Administration. Her
response was to write to the Deputy
Director General, informing him
of the harassment and victimisation she was suffering as a result of
her exposing the Mayor’s
abuse of her powers. On the 17 July
2012, she consulted her attorneys who wrote to the Mayor pointing out
that the Executive Committee
did not possess the authority nor had
the powers been delegated to it to terminate her appointment, and,
unless the resolution
was rescinded by no later than 12h00 Thursday
19 July 2012, they would launch an urgent application to have the
resolution of 9
July 2012 declared unlawful and set aside and a
declaration that the applicant remained to be employed as the Acting
Director Administration.
[21] The respondents
failed to respond to her attorneys’ letter of demand.
Accordingly, an urgent application was once again
launched on the 19
July 2012 and set down for hearing on the 26 July 2012. On the 24
July 2012, the first respondent’s Mayor
informed the applicant
that the Executive Committee had at its meeting on the 23 July 2012
rescinded the resolution terminating
her services as Acting Director
Administration. The matter having become academic and first
respondent having tendered costs the
matter was eventually removed
from the urgent roll and withdrawn pursuant to the applicant’s
attorneys’ notice of withdrawal.
[22] On 30 July 2012, the
Speaker of first respondent’s Council wrote a letter to the
MEC, seeking a response to the letter
dated 25 June 2012 reflecting
the first respondent’s Council Resolution of 25 May 2012 in
which the first respondent’s
Council accepted that it be under
the control of an Administrator in terms of section 139(1)(b) of the
Constitution.
[23] On 7 August 2012,
the MEC replied he had considered Mr Mokwena for the position of
Acting Municipal Manager of first respondent
and as an intervention
in terms of section 154 of the Constitution. He further requested
that an urgent meeting of Council be convened
to communicate his
decision. On 8 August 2012, the Speaker issued a notice in terms of
section 29(1)
of the
Local Government: Municipal Structures Act, 117
of 1998
that a Special Council Meeting was scheduled to introduce Mr
Mokwena to Council and
section 56
Managers. The Special Council
Meeting was scheduled for Friday 10 August 2012 at 10h00. The MEC was
so informed as were all councillors,
directors and the Station
Commander of SAPS at Wolmaranstad. The meeting did not proceed on
that day due to disruptions and disturbances
caused by employees and
those members of the community opposed to the MEC’s decision.
[24] Thereafter, the
Speaker called a briefing session of first respondent’s Council
for 14 August 2012 to inform Council
and officials of the MEC’s
decision. The applicant together with other officials was invited as
well. However, at the start
of the briefing session, the Mayor and
her supporters said that they wanted to proceed with a Special
Council Meeting to discuss
items on the agenda that the Mayor
produced. The Speaker pointed out that there was no Special Council
Meeting scheduled and would
not proceed with that meeting. Thereupon,
one councillor proposed another councillor to be the Acting Speaker
for the day. This
was seconded and he took the chair on the podium.
The Speaker left the meeting. The majority of Councillors left the
meeting as
well. An attendance register was prepared. But it
disappeared once complaints were received pertaining to a lack of
quorum.
[25] The Mayor’s
agenda contained the following items:
1. The rescission of two
Council Resolutions, dated 25 May 2012 and 25 July 2012, in terms of
which it was resolved that:
1.1. The vacant position
of Municipal Manager was to be re-advertised;
1.2. The MEC was
requested to appoint an Administrator and a request for intervention
as contemplated by section 139(b) of the Constitution.
2. Appointment of the
Municipal Manager;
3. Delegation to
represent Council in the absence of the Municipal Manager.
[26] Pursuant to the
above resolutions being rescinded, the remaining Councillors resolved
that:
‘
1. Mr I R Jonas be appointed as
the Municipal Manager with immediate effect from 14 August 2012;
Mr I R Jonas is appointed in (
sic
)
five years contract;
Mr I.R. Jonas must conclude 6 months
probation;
All the powers and functions assigned
to the Municipal Manager by law, by delegation and by any other form
are delegated to Mr
I R Jones;
The package be reduced from the
current package to R950,000.00;
The Mayor is delegated to sign
appointment letter, conclude employment contract and performance
agreement.’
[27] On 23 October 2012,
the applicant received a letter from the second respondent advising
her that her appointment as the first
respondent’s Acting
Director: Administration had been terminated with immediate effect.
The applicant immediately responded
by means of a memorandum
disputing the legality of the second respondent’s decision and
telling him that she intended to
challenge the same.
[28] On 24 October, her
attorneys addressed a letter of demand to the first and second
respondents,
inter alia
, seeking the following:
‘
1. Confirmation that the
decision to terminate my services has been terminated; or
2. Confirmation that I would be
reinstated as the first respondent’s Acting Director:
Administration, with immediate effect.’
[29] On the 25 October
2012, the applicant’s attorneys launched an urgent application
seeking interim relief, in terms of
which she should be reinstated as
the first respondent’s Acting Director: Administration pending
the final determination
of the review application which she brought
under case number JR2615/12. She further instructed her attorneys to
launch a review
application in terms of which she is seeking to
review the appointment of the second respondent as the Municipal
Manager as well
as the second respondent’s decision to
terminate her appointment as Acting Director: Administration under
case number 1615/12.
[30] On 29 October 2012,
the applicant received from the second respondent a notice of
intention to suspend her from her employment
duties pending
finalisation of investigations into ten serious allegations of
misconduct which could lead to possible disciplinary
proceedings
against her. Furthermore the municipality was of the view that her
presence at the workplace pending the finalisation
of further
investigations and/or possible conclusion of disciplinary hearing
will be detrimental to its interest. She was, accordingly,
instructed
to make representation to the Municipal Manager by 11h00 am Wednesday
31 October 2012 as to why she should not be suspended
from duty.
[31] On the 30 October
2012, her attorney of record made representations on her behalf to
the second respondent. On Friday 2 November
2012, a hand delivered
letter to her confirmed that the second respondent had decided to
suspend her with immediate effect, pending
further investigations
into allegations of misconduct leveled against her. On the 6 November
2012, she then instructed her attorneys
to proceed with this urgent
application for the relief as set out in para 5 of the notice of
motion, para 1
supra.
Jurisdiction of Labour
Court
[32] In terms of section
77(3)
Basic Conditions of Employment Act 75 of 1997
, as amended (“the
BCEA”), states: ‘The Labour Court has concurrent
jurisdiction with the civil courts to hear
and determine any matter
concerning a contract of employment, irrespective of whether any
basic condition of employment constitutes
a term of that contract’.
In
casu
this matter concerns the applicant’s
contract of employment with the first respondent’s council.
[33] In terms of
jurisdiction,
section 157(2)
of the LRA provides:
‘
(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 –
Employment and from labour relations;
Any dispute over the
constitutionality of any executive or administrative act or conduct,
by the State in its capacity as an employer;
and
The application of any law for the
administration of which the Minister is responsible.
(3) …
(4) (a) The Labour Court may refuse to
determine any dispute, other than an appeal or review before the
Court, if the Court is not
satisfied that an attempt has been made to
resolve the dispute through conciliation.
(b) A certificate issued by a
commissioner or a council stating that a dispute remains unresolved
is sufficient proof that an attempt
has been made to resolve that
dispute through conciliation.
(5) Except as provided in section
158(2), the Labour Court does not have jurisdiction to adjudicate an
unresolved dispute if this
Act requires the dispute to be resolved
through arbitration”.
Powers of the Labour
Court
[34] Section 158(1)
provides:
‘
The labour Court may-
Make an appropriate order, including-
Grant of urgent interim relief;
An interdict;
An order directing the performance of
any particular act which, when implemented, will remedy a wrong and
give effect to the primary
objects of this Act;
A declaratory order;
An award of compensation in any
circumstances contemplated in
this
Act;
An award of damages in any
circumstances contemplated in
this
Act;
An order of costs.”
Applicant’s
legal submissions
[35] Apart from hearing,
the matter on an urgent basis, the applicant seeks the relief as set
out in para 1
supra
: essentially:
‘
1.1 Declaring the Applicant’s
suspension to be invalid, unlawful and of no legal force and setting
the same aside, alternatively
uplifting the Applicant’s
suspension with immediate effect;
1.2 Directing the Respondents to
reinstate the Applicant with immediate effect and to forthwith comply
with the Applicant’s
contract of employment and conditions of
service.’
[36] The applicant
disputes the legality of her suspension on three grounds:
1
lack of
compliance with the Disciplinary Procedure and Code Collective
Agreement, which agreement forms part of the applicant’s

conditions of employment and therefore her contract of employment;
2 the second respondent’s lack
of authority to suspend the applicant;
3 the applicant’s suspension
being effected for an ulterior motive.
Disciplinary Procedure
and Code Collective Agreement
[37] Clause 4 of the
Disciplinary Procedure and Code of Collective Agreement, under the
subheading ‘INTENT’, determines
that:
‘
4.1 The purpose of this
Disciplinary Code is to establish a fair, common and uniform
procedure for the management of employee discipline.
4.2 The code is the product of
collective bargaining and the application thereof is peremptory and
it is deemed to be a condition
of service.’
[38] This Collective
Agreement is therefore incorporated into the applicant’s
contract of employment, binding on both parties
under section 77(3)
of the basic Conditions of Employment Act 75 of 1997. (see annexure
“MMC7” pp 72-73 indexed bundle
– respondents’
answering affidavit).
[39] Clause 14 of the
Disciplinary Procedure and Code Collective Agreement, which deals
with precautionary suspensions, provides:
‘
14. Employee Suspension Pending
a Disciplinary Hearing
14.1 The Employer may suspend the
Employee or utilize him temporarily in another capacity pending an
investigation into an alleged
misconduct if the Municipal Manager or
his authorized representative is of the opinion that it would be
detrimental to the interest
of the Employer if the Employee remains
in active service.
14.2 If the Municipal Manager or his
authorized representative, who shall not be more than two levels
below the said Municipal Manager,
intends to suspend an Employee, he
shall give notice of such intention and afford the employee an
opportunity to make representation
as to why he should not be
suspended. An enquiry shall be held within 48 hours between the
Municipal Manager or his authorized
representative, and the person
intended to be suspended and his authorized representative should he
wish to be represented, wherein
arguments may be made. The Municipal
Manager or his authorized representative shall make a determination
as to whether the employee
concerned shall be suspended or not after
having heard the representations.’
[40] The applicant
submits that an employer is required to at least provide reasons as
to why it, or the Municipal Manager, is of
the opinion that it is
detrimental to the interest of the employer if the employee remains
in active service. The rationale behind
this is simply in order to
allow the employee a proper opportunity to address those concerns,
should the employee want to avoid
being placed on precautionary
suspension and/or if the employee is of the view that a precautionary
is not justified. This will
also equally allow the employer to make
an informed decision and to establish as to whether a precautionary
suspension would be
justified.
[41] In
Lebu
v Maquassi Hills Local Municipality
,
1
a matter that
coincidentally involved the same Municipality, this Court confirmed
the above approach and interpretation, the only
difference being that
the matter related to the suspension of a Senior Manager, which
suspension is governed by the Local Government
Disciplinary
Regulations for Senior Managers, 2010.
[42] In the
Lebu
matter Van Niekerk J had
to decide:
‘
What is at issue, as I have
indicated, is whether the municipality was obliged, in terms of
regulation 6, to provide justification
for the applicant’s
suspension and to afford the applicant seven days within which to
make representations regarding that
justification before making any
decision to suspend him.’
2
[43] What Van Niekerk
held in
Lebu
’s matter is that an interpretation, as set
out in paragraph 40 above, is consistent with the principle of
audi
alteram partem
, which the Regulation in this matter, the
Collective Agreement, seeks to meet. He went on to say:
‘
Suspension is a measure that
has serious consequences for an employee, and is not a measure that
should be resorted to lightly.
There appears to be a tendency,
especially in the public sector, where suspension is applied as a
measure of first resort and almost
automatically imposed where any
form of misconduct is alleged. The purpose of removing an employee
from the workplace, even temporarily
and on full pay, must be
rational and reasonable, and must be conveyed to the employee
concerned in sufficient detail to enable
the employee to compile the
representations that he or she is invited to make in a meaningful
way. Of course there are those instances
where precautionary
suspension is a necessary measure, and where the reasons to remove an
employee from the workplace as a precautionary
measure are
compelling. But those cases will be the exception rather than the
norm.’
3
[44] In the case of
Vusi
Mashiane v Department of Public Works
4
this Court considered an
employee’s rights in terms of his or her conditions of
employment, derived from a Collective Agreement
or Regulation.
Lagrange J said:
‘
Moreover, the respondent could
not explain how an
untrammelled
right to suspend an employee without
regard to the safeguards in clause 2.7 of the Handbook – and by
necessary implication,
of the provisions of clause 7.2 of resolution
1 of 1999 – would not permit the very mischief which that
provision was intended
to prevent.’
5
[45] In considering
whether an employee has a clear right, and in the context of
suspension, Steenkamp J, in the matter of
Nothnagel
v Karoo Hoogland Municipality and Others
6
confirmed that:
‘
In terms of regulation 4(4) the
municipality is enjoined to adhere to the principles of natural
justice and fairness when instituting
disciplinary steps and deciding
on precautionary suspension.
As far as regulation 6(1) is
concerned, the respondents did set out almost verbatim the wording of
that regulation in their letter
of 4 May 2012. Was that proper
compliance, or was it mere lip service, as Mr Engela argued?
As this court pointed out in in
Maquassi Hills
(1):
“
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; it must
also have reason to believe that his presence may jeopardize the
investigation, endanger the well-being
or safety of any person or
municipal property, be detrimental to stability in the Municipality;
or that he may interfere with potential
witnesses or commit further
acts of misconduct.”’
[46] The obligation of
the respondents
in causa
to adhere to the principles of
natural justice and fairness, with reference to what has been stated
in
Nothnagel v Karoo Hoogland Municipality and Others
, are
equally recorded under clauses 4 and 5 of the Collective Agreement.
In the same matter the Court also held:
‘
In a judgment handed down just
over a month ago, the Labour Appeal Court confirmed, in a slightly
different context (pertaining
to the SMS Handbook) that ‘there
must be an objectively justifiable reason to deny the employee access
to the workplace based
on the integrity of any pending investigation
into the misconduct. The Court added:
“
As a general rule, a decision
regarding the lawfulness of a suspension….will call for a
preliminary finding on the allegations
of serious misconduct as well
as determination of the reasonableness of the employer’s belief
that the continued presence
of the employee at the workplace might
jeopardize any investigation etc.’
7
[47] Equally in
Biyase
v Sisonke District Municipality and Another
,
8
Steenkamp J also found
that:
‘
But that does not detract from
the applicant’s claim based on regulation 6, as opposed to any
implied right to fair dealing
to be read into his contract of
employment. As I recently pointed out in the similar case of
Lebu
v Maquassi Hills Local Municipality:
(footnote
omitted)
“
It must also be borne in mind
that the language of….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
the Supreme Court of Appeal has now held that no such implied right
can be read into the contracts of employment generally. Therefore,
La
Grange J said in
Mahlalela v
Pensions Fund Adjudicator
,
with reference to the earlier judgment in
Mogothle
v Premier of the North West Province and Others
:
“
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 75
of 1997,
which exists
independently of any statutory rights against unfair labour
practices….
”
(my emphasis).
But as I have pointed out,
the
applicant in this case has a clear contractual right, 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
Manama v King Sabata Dalindyebo Municipality
:
“
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.
”
(my emphasis)
[48] I, therefore, find
that the respondents have failed to provide any justification for its
intent to suspend the Applicant, which
is not only in breach of the
Collective Agreement, but also barred the applicant from her rightful
entitlement to provide the respondents
with substantive
representations why she ought not be placed on precautionary
suspension.
[49] It is common cause
that the mandatory enquiry which had to be held within 48 hours was
never held, instead the respondents
submitted that:
‘
It will be contended at the
hearing of this application that the applicant relinquished her right
to an enquiry by:
23.3.1 Not appearing before me within
the period of 48 hours and to make arguments; when she was afforded
the opportunity to appear;
23.3.2 Accepting that an inquiry will
not change anything, since her suspension, is nothing else but a
foregone conclusion.’
[50] The aforementioned
contention is fatally flawed,
inter alia
, for the following
reasons:
50.1 It is clear from
clause 14.2 of the Collective Agreement that the Municipal Manager is
intended to be the initiator of the
suspension process and that it is
therefore incumbent upon the second respondent to have called the
applicant to such an enquiry,
within 48 hours of notifying the
applicant of its intention to suspend her. This he never did.
50.2 The second
respondent did not call for such an enquiry and it was not up to the
applicant to present herself to the respondents
seeking to be
entertained;
50.3 The contention that
the applicant “
relinquished her right to an enquiry
”
in itself confirms the applicant’s entitlement to that enquiry,
but does not make sense, taking into account the following:
50.3.1 There would have
been no reason for the applicant to approach the second respondent
seeking an enquiry, as the applicant
would have waited for the second
respondent to notify her of such an enquiry, dependent on the second
respondent’s availability;
50.3.2 The allegation
that the applicant accepted that the enquiry would not have changed
anything does not again make sense as
the applicant had made
substantive submissions in answer to the information provided to her.
The enquiry would obviously have afforded
the applicant an
opportunity to elaborate thereon and pursuant to seeking further
particulars in respect of the precautionary suspension.
50.3.3 Furthermore the
refusal and or failure to hold an enquiry resulted in the applicant
losing her fundamental right to legal
representation, incorporated in
the Collective Agreement, which might also have gone far to prevent
the suspension.
50.3.4 Lastly, clause
14.6 makes it crystal clear that a suspension “
shall be for
a fixed and predetermined period
”. (my emphasis). It is
evident from the notice of suspension (see respondent’s
answering Affidavit annexure “MMC8”
p 340 indexed
bundle), that the applicant’s suspension is “pending
further investigation into alleged misconduct.”
Authority and
appointment of second respondent
[51] It is submitted that
the resolutions of the first and second respondents, taken at the
meeting of 14 August 2012, are unlawful
and therefore stand to be
reviewed and set aside,
inter alia
, as a result of these
decisions being in contravention of the
Local Government: Municipal
Structures Act 117 1998
; the
Local Government: Municipal Systems Act
32 of 2000
and the first respondent’s Rules of Order By-Law 1
of 2010, which sets out the rules of order insofar as Council
Meetings
are concerned.
[52]
Section 29
of the
Local Government: Municipal Structures Act
(“the Structures
Act”) determines the manner in which Council Meetings are
called. Section 29 determines the following:
‘
(1) The Speaker of a Municipal
Council decides when and where the Council meets subject to section
18(2), but if a majority of the
councilors requests the Speaker in
writing to convene a Council Meeting, the Speaker must convene a
meeting at a time set out in
the request.
(2) The Municipal Manager of a
Municipality or, in the absence of the Municipal Manager, a person
designated by the MEC for Local
Government in the Province, must call
the first meeting of the Council of that Municipality within 14 days
after Council has been
declared elected, or, if it is a District
Council, after all the members to be appointed by local councils,
have been appointed.’
[53] It is apparent from
the Speaker’s memorandum, dated 13 August 2012, that the
Speaker did not call a meeting in terms
of section 29 of the
Structures Act, but instead requested the first respondent’s
Council to attend a briefing session with
the following purpose:
‘
To inform Council about the Hon
MEC of Local Government and Traditional Affairs’ decision to
second Mr T.I. Mokwena as Acting
Municipal Manager to Maquassi Hills
Local Municipality for a period not exceeding 3 months.’
Accordingly, the majority
of councillors did not request the Speaker in writing to convene a
Council Meeting under section 29 of
the Structures Act. Therefore,
the proceedings of 14 August 2012 could not be anything but a
briefing session by the Speaker.
[54] Section 54A(4)
Local
Government: Municipal Systems Act
(“the Systems Act”)
determines that:
‘
(4) If the post of
Municipal Manager becomes vacant, the Municipality must:
Advertise the post
nationally to attract a pool of candidates nationwide; and
Select from the pool of
candidates a suitable person who complies with the prescribed
requirements for appointment to the post.’
[55] Section 54A(3)
determines the following:
‘
(3) A decision to appoint a
person as municipal manager, and any contract concluded between the
municipality and that person in
consequence of the decision, is null
and void if:
The person appointed does not have
the prescribed skills, expertise, competencies or qualifications; or
(b) The appointment was otherwise made
in contravention of this Act.’
55.1. The purpose of
advertising the post is to attract a pool of candidates from far and
wide so as to select a suitable person
who complies with the
prescribed requirements as set out in section 54A(4)(a)(b),
supra
.
55.2. Even the agenda of
the disputed council meeting of 14 August 2012 does not contain a
curriculum vitae
of R.I. Jonas or of any other candidates for
that matter nor do the minutes of that meeting reflect any discussion
about his “…his
prescribed skills, expertise,
competencies or qualifications; as required under section 54A(3)(a)
of the Act.
Accordingly, in terms of
sub-sections (3)(a) of the Act the decision to appoint him is null
and void,
ab initio
.
[56] Item 2A of Schedule
1 to the Local Government: Municipal Systems Amendment Act, 2011
provides as follows:
‘
A councillor may not vote in
favour of or agree to a resolution which is before the council or a
committee of the council which
conflicts with any legislation
applicable to local government.’
[57] The minority of
councillors who voted in favour of the resolutions at the disputed
council meeting of 14 August 2012 were in
contravention of this item.
[58]
In casu,
there have been many instances where the first and second respondents
terminate the applicant’s employment contract, only
to resile
from that decision at the last moment before the matter is heard. See
for examples paragraphs 14 – 18,
supra
. Paragraph 20,
the 10 July 2012 memorandum from the first respondent’s Mayor
notifying her that the Executive Committee had
resolved that she be
relieved from her position. Only for the first respondent’s
Mayor to notify her that the Executive Committee
had on the 23 July
2012 rescinded that resolution and tendered costs. This was after an
urgent application to declare the applicant’s
suspension to be
invalid, unlawful and of no legal force and effect and setting aside
the same, alternatively uplifting the applicant’s
suspension
with immediate effect or directing the respondents to reinstate the
applicant and to forthwith comply with the applicant’
contract
of employment and conditions of service.
[59] In paragraph 18 of
his judgment in
Lebu (2),
Van Niekerk had this to say about
the behavior of the first and second respondents: “[t]here is
also a sense in which the
temporal coincidences relevant to the
municipality’s decision making suggest that the municipality
has conducted itself in
Machiavellian fashion, concluding settlement
agreements on a return to work and withdrawing its opposition to the
litigation initiated
by the applicant, all the while remaining intent
on removing him from the workplace. My only regret is that the costs
order that
intend to make will be met ultimately, no doubt, by the
municipality’s ratepayers. Had the individual respondents been
put
on notice that they would be called upon to show cause why they
should not pay the costs of the application from their own pockets,
I
would have considered a motion to that effect.”
In my view, the above
remarks of the Learned Judge are equally applicable to the case
in
casu
.
[60] In the light of the
above submissions by the applicant on the jurisdiction of this court
to determine the forum where the applicant
should have initiated her
application for reinstatement, I am satisfied that the Labour Court
has jurisdiction and the power to
review and set aside.
[61] I am also satisfied
that the applicant is suffering harm in that she does not know why
she should be suspended and she has
not had an opportunity to address
those purported reasons.
[62] The applicant is
employed in a high-profile and politically sensitive position as
first respondent’s Director: Corporate
Services. It may well be
that she has committed serious misconduct but she is suffering
irreparable harm to her dignity and reputation
as she has set out in
her founding papers, contrary to the clear provisions of her contract
of employment, the Constitution and
the regulations.
[63] The applicant
launched her urgent application to be reinstated within 10 days after
receiving the notice of suspension. I am
satisfied that the applicant
did so expeditiously given the circumstances of her case.
[64] Accordingly, I make
the following order:
1 The application to
reinstate the applicant to her position is granted.
2 The first and second
respondents are to pay personally the applicant’s costs on an
attorney and client scale, jointly and
severally, one paying the
other to be absolved.
________________
Kumalo AJ
Acting Judge of the
Labour Court
Appearances:
Attorney
FW P Scholtz appeared for the applicant
Adv
A T Ncongwane SC appeared for the first and second respondents
1
[2012]
33 ILJ 642 (LC),
2
Ibid
at para 13.
3
Ibid
at para 14.
4
(J1773/12)
[2012] ZALCJHB 69 (18 July 2012).
5
Ibid
at para 22.
6
(C
431/12) [2012] ZALCCT 19 (11 June 2012) at paras 24, 29 and 30.
7
Ibid
at para 36.
8
(2012)
33 ILJ 598 (LC) at para 22.