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[2013] ZALCJHB 113
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Mofokeng v Mayor: Greater Taung Local Municipality and Others (J 498/13) [2013] ZALCJHB 113 (24 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Of Interest to other judges
Case No: J 498/13
In the matter between:
MPHO SIMON MOFOKENG
.
...........................................................................
Applicant
and ,
MAYOR: GREATER TAUNG LOCAL MUNICIPALITY
......................
First Respondent
SPEAKER: GREATER TAUNG LOCAL MUNICIPALITY
.............
Second Respondent
COUNCIL: GREATER TAUNG LOCAL MUNICIPALITY
..................
Third
Respondent
GREATER TAUNG LOCAL MUNICIPALITY
..................................
Fourth
Respondent
Heard: 09 & 14 April 2013
Delivered: 24 May 2013
Summary:
(return date – stay of local authority’s
attempt to rescind renewal of appointment of municipal manager –
interim
order discharged – appointment ultra vires Municipal
Systems Act – lis alibi pendens )
JUDGMENT
Lagrange
J
Background
This matter was set down for hearing on 9 April 2013 by the
respondents in anticipation of the return day.
The applicant, Mr M S Mofokeng, claims to be the appointed municipal
manager of the Greater Taung Local Municipality, the fourth
respondent. The first and second respondents are the Mayor and the
Speaker of the fourth respondent respectively. The third respondent
is the Council of the fourth respondent.
It is common cause that on 16 August 2010 the applicant and the
municipality concluded a contract of employment pointing the
applicant as the Municipal Manager. In terms of the contract his
employment was deemed to have started on 1 April 2010 and was
to
last for a fixed period of two years. After the contract expired on
31 May 2012 he was appointed on a month-to-month basis
as the acting
municipal manager.
On 24 April 2012 the municipal Council decided to advertise the post
of municipal manager. The relevant portion of the minute
reads:
"11.5 End of Employment Contract of Acting
Municipal Manager
That Council takes note of the contents of the report
on the end of contract of the Acting Municipal Manager, Mr Mpho
Mofokeng.
Resolution 5/2012-IiC
(a) That the position of municipal manager be
advertised.
(b) That the current position be on a month-to-month
for a period not exceeding three months to conclude the recruitment,
selection
processes and the appointment of a suitable candidate.”
This prompted the applicant to demand of the Council that it
refrained from advertising his position, that his current employment
contract be extended, or alternatively that these questions should
be referred to arbitration. The basis on which the applicant
claimed
that his contract should be extended related to clause 3.2, or more
properly 3.3, of his original fixed term contract.
Clause 3.2
concerning the fixed term of his contract was expressly made subject
to clause 3.3 of the contract, which stated:
"3.3 it is specifically recorded that there is
no expectation that this agreement will be renewed or extended beyond
the term
referred to in 3.2. The employer's decision not to renew or
extend the contract shall not constitute an unfair dismissal and the
employer shall not be entitled to any form of compensation. The
May/and or municipal Council shall not unreasonably withhold such
opportunity. To effect such renewal the municipal manager shall have
to prove that he has performed his duties under this agreement
to the
satisfaction of the matter on behalf of the municipality, and the
Mayo will have to be satisfied of the municipal managers
work
performance, in determining such work performance the man must be
guided by the municipal manager performance in terms of
the
performance management system as well as his compatibility with the
municipal Council and the matter and provided that:
3.3.1 The performance agreements concluded and
required to be concluded between the Mayo in the municipal manager
have been fulfilled.
3.3.2 Any other terms must be a basis for renewal
e.g. that remuneration will not be less than it is at the date of
expiry of the
first term of the contract.
3.3.3 The failure to renew or extend the period
referred to in 3.2 above, which renewal or extension will not be
unreasonably withheld,
could become a matter for arbitration on the
request of any of the parties and then the provisions of clause 20
shall apply.
3.3.4 The parties specifically record that if a
dispute regarding the renewal of the agreement is taken to
arbitration and the ruling
is made in favour of the municipality,
this agreement comes to an end on expiry of the fixed period and then
such ending shall
not be construed as a termination based on the
municipality is operational requirements, nor as an unfair
dismissal...."
(
sic
)
In the applicant’s letter of demand, he set out what he
considered to be features of his good performance record to date
in
support of his contention that he had met the requirement for
extension of his contract.
A special meeting of the municipal Council took place on 13 June
2012. At that meeting, there was extensive discussion under
an item
headed ‘End of Employment Contract of Acting Municipal
Manager’. Under that item a report was tabled which
dealt with
the legislative framework created by the amendments to the Local
Government: Municipal Systems Act, 32 of 2000 (‘the
Systems
Act’)in July 2011, the audit reports of the Council under the
applicant's tenure, long term planning, performance
management and
ultimately, the applicant’s contract. The report noted the
following in relation to changes to the Systems
Act affecting the
appointment conditions of a municipal manager:
Any person, who has been appointed as acting
municipal manager before the commencement of the Amendment Act must
be regarded as
having the relevant appointment requirements.
However, all acting appointments must be brought in line with the
requirements
of the section relating to the limitations on acting
periods which cannot exceed three months.
Before the appointment of a section 57 manager, the
municipality must furnish the MEC of Local Government with a full
appointment
processes report as set out in regulation 19.
The municipal manager must have signed a performance
agreement signed 60 days after the commencement of employment.
That in terms of the Municipal Systems Act section
54 (A) (11) a person who is appointed as an acting municipal manager
before
the section took effect in July 2011, must be regarded as
having been appointed in accordance with this section for the period
of the acting appointment.
It is also specifically stated in section 57 (6c) of
the MSA that the employment contract of section 57 manager must have
terms
for renewal of the employment contract."
There followed a discussion of the report in which it was noted that
conflicting legal opinion on the issue had been received.
It was
further noted the Council's executive committee meeting of 20 April
2012 had recommended that the acting municipal manager’s
contract should be renewed for reasons of continuity, positive
performance progress, stability and similar considerations. At
the
conclusion of the discussion, the meeting took the following
decision, from which it appears seven councillors abstained
from
endorsing:
"Resolution 34/2012
(a) that Council takes note of the content of the
report as tabled.
(b) That Council approves rescinding of Council
resolution number 5/2012 IiC which resolved to "advertise the
position of the
municipal manager and appoint Mr Mofokeng on a
month-to-month fixed term contract" as it was misled and ill
informed of the
contractual obligations of Mr Mofokeng’s
employment contract.
(c) That Council
approves the renewal
of
employment contract of Mr Mofokeng which must be linked to the term
of office of Council and must not exceed one year of the
next
election.
(d) That the Mayor be delegated to enter, finalise an
employment and performance contract and report to Council for
ratification.
(e) That on good cause shown, concurrence be sought
from the MEC for Local Government and Traditional Affairs as per
legislative
requirements.
(f) That upon realisation of (d) above, the position
be filled with immediate effect..."
(emphasis added)
Notwithstanding the resolution, the Mayor did not conclude an
employment and performance contract with the applicant. The thrust
of this application is to hold the Council to resolution 34/2012
and, in particular, to compel the Mayor to finalise an employment
and performance contract with the applicant. In fact, towards the
end of February 2013 the applicant's learnt that the Mayor
had
prepared a document for discussion at a Council meeting scheduled
for 28 February 2013. The document contained a recommendation
that
Exco should recommend to Council to review the resolution 34/2012
and recommend the advertisement of the position of municipal
manager
and the declaration of a moratorium on all pending interviews and
appointments until the matter was resolved. The applicant
advised
councillors that the proposal would contravene the Council’s
Rules of Order because the item was not on the agenda
of the meeting
and seven days notice of it had not been provided as the rules
required. It appears that the applicant succeeded
in persuading the
councillors not to discuss the item on that occasion, possibly
induced by the applicant’s threat of seeking
a costs order
against councillors personally if the item was discussed.
However, a notice was issued on 8 March 2013 calling a special
meeting of the Council to be held on 12 March 2013. On the agenda
of
the meeting was a notice of motion to rescind resolution 34/2012. It
was this notice on which prompted the applicant to launch
his
initial application on 10 April 2013.
On 11 March 2013, the Honourable Justice Moshoana, AJ made an
interim order, with a return date 9 May 2013, in the following
terms:
11.1. The matter is urgent and forms for service dispensed with.
11.2. The first, second, third and fourth respondent is interdicted
from:
11.2.1. Rescinding the decision of the third respondent taken on 12
July 2012 being the Council resolution 34/2012.
11.2.2. That the prayer in paragraph 10.2.1 shall operate as an
interim order pending:
11.2.2.1. The implementation and finalisation by the first respondent
of the provisions of subparagraph (d) of the second respondent's
resolution 31/2012 alternatively
11.2.2.2. The conclusion of the application under case number
J445/2013.
The last mentioned matter is another application launched in March
2013 prior to this one, in which the applicant is claiming
specific
performance of his contract of employment or alternatively damages.
In relation to this earlier matter another controversy
was raised by
the applicant in an attempt to dispute the authority of the Mayor to
depose to the answering affidavit on behalf
of the respondents. The
applicant claims that the Mayor was only authorised by a Council
resolution to oppose his application
for specific performance and
not this urgent application. A resolution was taken at a Council
meeting which took place the day
after the interim order in this
matter was handed down. At the meeting, it was specifically noted
that the Council had been interdicted
from rescinding resolution
34/2012 and that the applicant had launched his application for
specific performance, or alternatively
damages based on a claim that
he was entitled to be employed for a five year period.
The last item on the agenda of the meeting of 12 of March 2013
concerned the earlier resolutions. At the conclusion of discussions,
a ruling was made by the Speaker followed by the adoption of
resolution 3/2013 IiC. The relevant portion of the minute reads:
"Ruling by the Speaker
(i) That in order to avoid discussion of the court
interdict directly or indirectly, the Speaker ruled that the house be
divided
by way of voting to indicate whether members for or against
the defence of the interim order
brought by the municipal
manager against the municipality.
Resolution 3/2013 IiC
(a) That the following councillors vote
for the
defence
of
the order
, case number will J445/2013 against
the municipality..."
(Emphasis added)
The applicant argued that the reference to ‘J445/2013’
in the resolution meant that the Council had only authorised
opposition to his application for specific performance under that
case number and had not authorised opposition in this matter.
He
also argued and that in any event since the question of the validity
and enforcement of his employment contract was at issue
in that
application also, this court could not pronounce on the effect of
section 54A of the Systems Act, which was central to
the issues in
that application and therefore this court is precluded from
determining the issue in these proceedings on the principle
of
lis
alibi pendens
.
Section 54A of the Systems Act is central to the respondents’
defence in both claims. In essence, the respondents say that
the
purported ‘extension’ of the applicant’s contract
of employment was in contravention of section 54A. On
their version,
when the applicant’s initial two year fixed term contract
ended the position of the municipal manager became
vacant and when
that occurred the Council should have followed the requirements of
section 54A (4). What happened was that, the
applicant was appointed
on a month-to-month basis from 31 May 2012 and in terms of section
54A(2A)(a) of the Systems Act a municipal
manager could not be
appointed to act for a period exceeding three months. In terms of
section 54A (3)(b) any appointment of
a person in contravention of
the provisions of the Systems Act is null and void. Consequently,
the respondents argued the extension
of his contract which had
already terminated was null and void
ab initio.
By contrast, the applicant argues that the resolution did not extend
his existing contract but renewed it. He was appointed as
the
permanent municipal manager (at least for a five year term) and not
in an acting capacity. That renewal was not affected
by the
provision of s 54A because it was inapplicable to a renewal of his
contract.
Evaluation
Lack of Authority
to oppose the application
Considering resolution 3/2013 IiC and the wording of the Speaker’s
ruling, it is clear that the meeting which took the
resolution,
intended to defend the interim ruling which was made the previous
day. That was the only order which had been made
in the matter at
that stage. The erroneous reference to the case number of the
applicant’s contractual claim was clearly
an error. It follows
in my view that having taken this decision, a natural consequence
would be that legal practitioners would
have to be engaged to give
effect to it. Consequently, I am satisfied that the Mayor was not
acting without authorisation in
deposing to answering affidavit in
this matter.
Lis alibi pendens
I agree that the question of the whether the attempt to renew the
applicant’s appointment as municipal manager raises the
issue
of the effect of s 54 of the Systems Act in this matter and in the
applicant’s pending contractual claim. The requirements
of
lis
alibi pendens
are met. But that is not dispositive of which
matter should determine the issue. In
Van
As v Appollus en Andere
[1993]
3 ALL SA 402
(C)
, Conradie J found
that when the special plea of
lis
alibi pendens
arose, it was not an
inflexible rule that whichever of two matters was launched first
determined which matter would have to yield
to a decision in the
other. The court held that it has a discretion to determine in which
matter the pending question should
be determined, and that
considerations of convenience and fairness might justify that the
common issue could be determined in
the matter that was not launched
first.
1
In this case, the dispute has been drawn out since February this
year and no date had been set for the hearing of the applicant’s
contractual claim. The Council has been paying the applicant his
salary and claims that he is appointing staff, which the applicant
does not deny. He also occupies a key position as the accounting
officer of the Council. Moreover, he is performing the functions
of
Municipal Manager without a performance agreement in place, contrary
to the provisions of section 57, which states
inter alia
that
:
“
(1)
A person to be appointed as the municipal manager of a municipality,
and a person to be appointed as a manager directly accountable
to the
municipal manager, may be appointed to that position only-
(a) in
terms of a written employment contract with the municipality
complying with the provisions of this section;
and
(b) subject
to a separate performance agreement concluded annually as provided
for in subsection (2).
(2) The performance agreement
referred to in subsection (1) (b) must-
(a) (i) be
concluded within 60 days after a person has been appointed as the
municipal manager
or as a manager directly accountable to the
municipal manager, failing which the appointment lapses: Provided
that, upon good cause
shown by such person to the satisfaction of the
municipality, the appointment shall not lapse;...”
Since his original appointment as the
Municipal Manager expired with the expiry of his fixed term
contract, he was employed in
an acting capacity only.
The
applicant contends his contract was not extended but renewed by the
contentious resolution of June 2012. I agree that the
Council was
intending to appoint the applicant as Municipal Manager subject to a
longer fixed term contract and to end his acting
status. Such an
appointment necessarily meant it was purporting to make a new
appointment of a full time municipal manager and
was filling a
vacant full-time post that had only been filled on a temporary basis
since the applicant’s first full-time
appointment expired. In
such circumstances, s 54(4)comes into play, viz:
(4) If the post of municipal
manager becomes vacant, the municipal Council must-
(a) advertise
the post nationally to attract a pool of candidates nationwide; and
(b) select
from the pool of candidates a suitable person who complies with the
prescribed requirements for appointment
to the post.”
A purported appointment without following this process would be
contrary to the provisions of the Systems Act and therefore null
and
void in terms of s 54(3) of that Act. In the circumstances, I am
satisfied that the Council acted
ultra vires
in purporting to
resolve to renew the applicant’s appointment as municipal
manager and that resolution was null and void
ab initio.
It
follows therefore that the applicant has no right to enforce claims
against the respondents based on the existence of such
a contract.
Order
In light of the findings above, resolution 11 March 2013 of the
Council of the Greater Taung Local Authority dated 13 June 2013
which purported to authorise the renewal of the appointment of the
applicant as Municipal Manager is declared null and void.
The interim order issued by Moshoana AJ on 34/2012 is discharged.
The applicant must pay the respodents’ costs
___________________________
LAGRANGE, J
Judge of the Labour Court
Appearances:
For the applicant: K Lengane
instructed by DMS Attorneys
For the
respondents: D K Kela instructed by N P Voyi
1
At
404-405 of the judgment, viz:
“
Die
Hof het 'n diskresie om te besluit watter van die verrigtinge
voortgaan. Hoewel dit seker dikwels sal gebeur dat 'n Hof sal
besluit dat die lis wat eerste aanhangig gemaak is die een is wat
behoort voort te gaan, is dit nie 'n onwrikbare reël nie.
In
Geldenhuys v Kotzé 1964 (2) SA 167 (O) ,
byvoorbeeld, het die Hof op grond van oorwegings van gerief
en
billikheid toegelaat dat mosieverrigtinge wat ná 'n aksie
ingestel is, eerder as die aksie self voortgesit word. Insgelyks
is
daar in Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136
(T) beslis dat die Hof 'n diskresie besit om die een
of die ander
van die verrigtinge te laat voortgaan. Die later ingestelde
verrigtinge vir voorlopige vonnis is op grond van
billikheidsoorwegings toegelaat om voort te gaan. Oorwegings van
gerief en billikheid oorheers by hierdie vraagstuk.”