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[2013] ZALCJHB 145
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Mayor: Greater Taung Local Municipality and Others v Mofokeng, In re: Mofokeng v Mayor: Greater Taung Local Municipality and Others (J 498/13) [2013] ZALCJHB 145; [2014] 1 BLLR 63 (LC) (18 June 2013)
9
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: J 498/13
In the matter between -
MAYOR: GREATER TAUNG LOCAL MUNICIPALITY
.............................
First
Applicant
SPEAKER: GREATER TAUNG LOCAL MUNICIPALITY
....................
Second Applicant
COUNCIL: GREATER TAUNG LOCAL MUNICIPALITY
........................
Third
Applicant
GEATER TAUNG LOCAL MUNICIPALITY
............................................
Fourth
Applicant
And
MPHO SIMON MOFOKENG
.........................................................................
Respondent
In re:
MPHO SIMON MOFOKENG
.
.............................................................................
Applicant
And
MAYOR: GEATER TAUNG LOCAL MUNICIPALITY
...........................
First
Respondent
SPEAKER: GREATER TAUNG LOCAL MUNICIPALITY
...............
Second Respondent
COUNCIL: GEATER TAUNG LOCAL MUNICIPALITY
......................
Third Respondent
GEATER TAUNG LOCAL MUNICIPALITY
.......................................
Fourth
Respondent
Date heard: 13 June 2013
Date delivered: 18 June 2013
Summary: Stay of the judgment /order upon filing of leave to
appeal. Principles governing leave to execute judgment despite leave
to appeal or where leave to appeal granted, then appeal.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
MOLAHLEHI J
This is an urgent application for leave to execute the judgment made
by R Lagrange J on 24 May 2013 under case number J 567/13,
in terms
of which the resolution made by the fourth applicant extending the
fixed term contract of the respondent, Mr Mofokeng
was declared null
and void. This application is consequent to leave to appeal launched
by the respondent in this interlocutory
application.
The legal consequences of leave to appeal is that the judgment made
by R Lagrange J on 24 May 2013, is automatically suspended
pending
the outcome of the appeal. The respondent filed the leave to appeal
soon after the judgment declaring the extension of
his contract to
be null and void was made.
The essence of the present
application is to declare the judgment made by R Lagrange J
executable or enforceable despite the leave
to appeal, in terms of
rule 49 (11) of the Uniform Rules of the High Court
1
read with rule 11
2
of the Rules of this Court.
The issue that served before the Court which is the subject of the
leave to appeal concern the resolution by the fourth applicant
in
terms of which the contract of the respondent was extended. It
appears common cause that the fixed term contract was extended
on a
month-to-month basis.
On 24 April 2012 the applicant took a decision to advertise the
position of the municipal manager. The decision to advertise
the
position was subsequently rescinded during June 2012 and another
resolution known as resolution 34/2012 was adopted. The
essence of
that resolution was to extend the already expired fixed term
contract of the respondent.
It is apparent that the extension of the respondent’s contract
did not receive support from certain members of the council.
It was
as a result of this that the deputy Mayor prepared a report
regarding this matter which was presented before the council
at the
beginning of this year. The report recommended that the resolution
regarding the extension of the contract of the Municipal
Manager
needed to be review and that the vacant position be advertise.
The respondent instituted urgent proceedings in this Court seeking
an order to interdict the intention to rescind the decision
recorded
under resolution 34/2012. The outcome of the proceedings was that
the interim order calling on the applicants to show
cause why it
should not be interdicted from rescinding resolution 34/2012 was
made on 11 March 2013 by Moshoana AJ.
Resolution 34/2012 which is the subject matter of this case reads as
follows:
‘
(a)
That Council takes note of the content of the report is tabled.
(b) That
Council approves rescinding of Council resolution number 5/2012 liC
which is 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 informant
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 and employment and performance
contract and report to Council for ratification..
(e) That on
good cause shown, comparisons be sought from the MEC for Local
Government and Traditional Affairs as pay legislated
requirements.
(f) That upon
realisation of (d) above, the position be sealed with immediate
effect…’
On the return date the matter came before R Lagrange J, who after
considering whether to confirm or discharge the interim order
held
that:
‘
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
controversial claim. The Council has been paying the applicant his
salary and claims that his 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. . .’
Section 57 of the Systems Act requires amongst others that a
Municipal Manager should be appointed only in terms of a written
contract and a performance contract which has to be concluded within
sixty days after the appointment into the position of the
Municipal
Manager.
The Court further found that the consequence of the resolution 34/12
was to appoint the respondent on the long and fixed term
contract to
end his acting status. The appointment would, according to the Court
amount to filling of vacant full-time posts
through an appointment
which was temporary. The Court also found that the approach adopted
by the council to have been in contravention
of section 54 (4) of
the Municipal Systems Act which provides:
“
(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) from the
pool of candidates a suitable person who complies with the prescribed
requirements for appointment to the post."
The above reasoning and its outcome is challenged by the respondent
in his application for leave to appeal on various grounds
set out in
the application for leave to appeal. The essence of the challenge of
the decision of the Court
a quo
is that the Court considered
issues which were not properly before it. In this regard the
respondent contends that the Court
was called upon to consider
confirmation or discharge of the interim order and not to interprete
the provisions of section 54
of the Municipal Systems Act.
The applicant accepts that the common law rule is that the launching
of leave to appeal suspends the decision made by the Court
a quo
pending the outcome of the leave to appeal and where leave has
been granted, appeal.
The applicant has however launched this application to suspend or
waive the common law rule on a number of grounds. The essential
ground upon which the applicant seeks to waive the common law rule
in the circumstances of this case, is the implication to
administration if the rule was to be upheld. In this respect the
applicant contends that it would suffer prejudice, in particular
in
relation to carrying out its Constitutional mandate of service
delivery if the respondent was allowed to continue in his position
pending the outcome of the appeal.
Legal principles
It is trite that the execution
of a judgment is automatically suspended upon the noting of an
appeal, which means pending the
appeal judgment cannot be
implemented and no effect can be given to it. The exception to this
common law rule is that the judgment
against which an appeal has
been noted can be executed with the leave of the Court. In this
respect the Court may on application
and in exercising its
discretion order that judgment be executed despite the pending
appeal. The factors to take into account
in considering an
application to stay execution of judgment in light of the noting of
an appeal is set out in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
,
3
as follows:
“
The
Court to which application for leave to execute is made has a wide
general discretion to grant or refuse leave and, if leave
be granted,
to determine the conditions upon which the right to execute shall be
exercised (see Voet, 49.7.3;
Ruby’s
Cash Store (Pty) Ltd v Estate Marks and Another
[1961
(2) SA 118
(T)] at p. 127). This discretion is part and parcel of the
inherent jurisdiction which the Court has to control its own
judgments
(cf.
Fismer
v Thornton
1929
AD 17
at p.19). In exercising this discretion the Court should, in my
view, determine what is just and equitable in all the circumstances,
and,
in doing so, would normally have regard, inter alia, to the following
factors:
(1) the potentiality of
irreparable harm or prejudice being sustained by the appellant on
appeal (respondent in the application)
if leave to execute were to be
granted;
(2) the potentiality of
irreparable harm or prejudice being sustained by the respondent on
appeal (applicant in the application)
if leave to execute were to be
refused;
(3) the prospects of success on
appeal, including more particularly the question as to whether the
appeal is frivolous or vexatious
or has been noted not with the bona
fide intention of seeking to reverse the judgment but for some
indirect purpose, e.g., to gain
time or harass the other party; and
(4) where there is the
potentiality of irreparable harm or prejudice to both appellant and
respondent, the balance of hardship or
convenience, as the case may
be.”
The above was quoted with
approval by the Constitutional Court in the matter of
Minister
of Health and Others v Treatment Action Campaign and Others
(No 1),
4
where the Court emphasised the issue of irreparable harm as a factor
to take into account in considering execution of judgment
pending
appeal. In this respect the Court had the following to say:
“
Before
making an order to execute pending appeal, therefore, a Court will
have regard to the possibility of irreparable harm and
to the balance
of convenience of the parties, as the judge clearly did in this
case.”
In the present instance the applicant contends that it would suffer
prejudice if its application was not granted because service
delivery would suffer more particularly because there is no
performance management contract in place for the respondent. If that
was to be the case, it would in my view, be of the applicant's own
making in that all what the applicant needs to do is to ensure
that
effective and proper management systems are in place to ensure
compliance. The respondent is an employee who should receive
instructions from the applicant which would include amongst others
that he should perform at a particular level, failing which
disciplinary steps could be taken against him.
The applicant has in my view, accordingly failed to show that it
would suffer irreparable harm if leave to suspend the common
law
rule staying the execution of the judgment pending the appeal was
not granted.
The harm or prejudice that is likely to be suffered by the
respondent if leave to execute the judgment was to be granted would
essentially entail him not receiving his salary pending the appeal.
This does not constitute irreparable harm as envisaged by
the legal
principles. It is therefore my view that, leave to execute the
judgment pending the appeal will not result in irreparable
harm for
the respondent. If successful on appeal the respondent will be
entitled to receive back pay from the applicant.
In light of the above, I am of the view that, there is no
potentiality of harm or prejudice to both parties in this matter.
And therefore the next issue for consideration in the assessment of
whether or not to grant leave to execute the judgment is
consideration of the prospects of success in the appeal.
In his leave to appeal, the Applicant attacks the judgment on
several grounds, the essence of which is that, the court in
declaring
resolution 34/2012 null and void erred in considering
issues which were not before it, in particular concerning the
interpretation
of section 54 of the Systems Act. In applying the
established test for determining prospects of success, I have taken
into account
the submissions made by the parties, the grounds for
leave to appeal and the judgment of my learned brother R Lagrange J.
I am
not convinced that the respondent has prospects of succeeding
on appeal. I am also of the view that, the balance of convenience
favours the granting of leave to execute the judgment.
Conclusion
I accordingly find that, the respondent does not have prospects of
succeeding on appeal. In addition, I find that the balance
of
convenience favours the granting of leave to execute despite the
appeal launched by the respondent. I do not however believe
that it
would be fair to allow costs to follow the results.
Order
In the premises, the following order is made:
The matter is treated as one of urgency and the rules relating to
time frames are dispensed with.
The order granted by this Court on 24 May 2013 under case J498/13
shall not be suspended by the respondent’s application
for
leave to appeal which was filed on 27 May 2013.
The applicant is granted leave to execute the order granted by
this Court under case number J498/13 on 24 May 2013 pending
leave
to appeal and if granted, appeal.
There is no order as to costs.
E Molahlehi
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv Kela instructed by Ndumiso Voyi Attorneys
For the Respondent
:
Adv
K Lengane instructed by DMS Attorneys
1
Rule
49 (11) of the Superior Court Practice reads as follows: Where an
appeal has been noted or an application for leave to appeal
against
or to rescind, correct, review or vary an order of Court has been
made, the operation and execution of the order in question
shall be
suspended, pending the decision of such appeal application, unless
the Court which gave such order, on application of
a party,
otherwise directs.
2
Rule
11 of the Labour Court Rules reads as follows:
interlocutory
applications & procedures not specifically provided for in
other rules
1. The following applications must be brought on
notice, supported by affidavit:
(a) Interlocutory applications;
(b) other applications incidental to, or pending,
proceedings referred to in these rules that are not specifically
provided for
in the rules; and
(c) any other applications for directions that may be
sought from the court.
2. The requirements in subrule (1) that affidavits must
be filed does not apply to applications that deal only with
procedural
aspects.
3. If a situation for which these rules do not provide
arises in proceedings or contemplated proceedings, the court may
adopt
any procedure that it deems appropriate in the circumstances.
4. In the exercise of its powers and in the performance
of its functions, or in any incidental matter, the court may act in
a
manner that it considers expedient in the circumstances to achieve
the objects of the Act.
3
1977
(3) SA 534
(A) at 545C-G.
4
[2002] ZACC 16
;
2002
(5) SA 703
(CC) at page 709 para G