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[2014] ZALCJHB 122
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IMATU and Another v City of Matlosana Local Municipality and Another (J620/14) [2014] ZALCJHB 122; (2014) 35 ILJ 2459 (LC) (10 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
REPORTABLE
CASE NO: J
620/14
In
the matter between:
IMATU First
Applicant
ABRAHAM
GERHARDUS
STRYDOM Second
Applicant
and
THE
CITY OF MATLOSANA
LOCAL
MUNICIPALITY First
Respondent
E
H LOUW
N.O.
Second
Respondent
Heard:
20 March 2014
Delivered:
10 April 2014
Summary:
Dismissal of application on grounds of urgency not rendering final
judgment; open to court to consider matter on merits. Quorum
of
municipality not met and decision taken pursuant thereto invalid.
Prerequisites of
Protected Disclosures Act 26 of 2000
not met.
JUDGMENT
NGCUKAITOBI
AJ
INTRODUCTION
1.
The first applicant is the
Independent Municipal and Allied Trade Union (“IMATU”).
The second applicant is a member
of IMATU. The applicants have
brought this application to secure an interdict against a decision
taken by the first respondent,
the City of Matlosana Local
Municipality (“the Municipality”) to institute
disciplinary proceedings against the second
applicant. The
second respondent, Mr E H Louw has been cited in his official
capacity as the chairperson of the disciplinary
enquiry which is the
subject of this dispute. The second applicant is employed as the
Director of Corporate Services by the Municipality,
on a fixed term
contract, which lapses in 2017.
2.
There is a peculiar feature
to this case. On 17 January 2014 the applicants brought an
urgent application asking for the same
relief, namely the interdict
against the disciplinary enquiry on an interim basis pending a
referral to arbitration of the issue
of the lawfulness of the charges
against the second applicant, an aspect to which I revert below.
Before the application
for interim relief could be heard, the
applicants amended their notice of motion to seek final relief on the
same terms.
3.
Both applications (the
application for interim relief and the application for final relief)
were heard on 6 February 2014.
Lagrange J dismissed the
application for interim relief on the basis that the applicants had
not approached the chairperson before
embarking upon this application
before this court. The application for final relief, on the
other hand, was dismissed for
lack of urgency.
4.
Subsequent to the dismissal
of these applications, the applicants brought the present
application. It came before me on an
urgent basis. The
relief is sought on an “
interim
”
basis, pending the finalization of an application for leave to appeal
and any consequent appeal to the Labour Appeal Court.
5.
The substantive
justification for the application is two-fold:-
5.1
First, it is
contended that the decision taken by the first respondent to
institute disciplinary proceedings against the second
applicant was
invalid and of no force or effect, because the Council which
deliberated on the matter and took the relevant resolution
lacked the
requisite quorum.
5.2
Second, it is
contended that the decision to charge the second applicant with
misconduct constitutes an “
occupational
detriment
” which
is prohibited under the
Protected Disclosures Act 26 of 2000
.
6.
The application is opposed
on various grounds. At a procedural level, it is contended, on
behalf of the Municipality, that
the judgment of Lagrange J is not
appealable and hence no interim order pending an appeal can be
granted. At a substantive
level, the allegations concerning
protected disclosures are denied and it is contended that the
relevant Council meeting was quorate.
If the relevant meeting
was not quorate, it was submitted that I must have regard to
subsequent decisions of the Council where
the disciplinary enquiry
against the second applicant was discussed.
7.
Because this case was heard
in urgent court, amidst a number of other pressing matters, there was
insufficient time to explore all
its facets in the detail they
deserved. The result is that it was only after oral argument during
the preparation of the judgment
that some of the issues, which should
have been ventilated during argument began to crystallise. In this
regard, I invited the
parties to make further submissions on two
questions. The first was whether it would be permissible to regard
the application brought
by the applicants as a fresh application,
bearing in mind that new facts, which were not before Lagrange J had
been pleaded in
the application before me. In this regard, the
most important aspect on which Lagrange J’s decision turned was
the
failure of the applicants to refer their complaint to the
chairperson of the enquiry before coming to court. Now they have done
so, as indicated in supplemented papers that were filed. The second
issue was whether it would be permissible to grant final relief,
given that it was not expressly asked for by the applicants.
8.
The parties have made
helpful submissions in response to my directions, which I will
address below. Neither party asked for leave
to supplement the
pleadings, save that I have been furnished with a copy of the
decisions by the chairperson, where he dismisses
the objections of
the second applicant.
9.
In view of the submissions
made by the parties, it is convenient to examine first the question
of the finality of the decision of
Lagrange J and the related
question of whether the application should not be regarded as one for
final relief.
IS
THE DISMISSAL OF THE APPLICATION FOR FINAL RELIEF APPEALABLE?
10.
There is no disagreement
between the parties concerning the propriety of the dismissal of the
interim relief application on the
grounds of failure by the
applicants to approach the second respondent, Mr Louw, before coming
to court. The controversy
surrounds the dismissal of the
application for final relief. It is therefore necessary to
consider the circumstances under
which the dismissal took place.
11.
On 17 January 2014 the
applicants approached this court on an urgent basis seeking interim
relief. They asked for an order
interdicting the Municipality
from proceeding with the disciplinary enquiry which was scheduled to
proceed on 22 January 2014.
At that stage, Mr Louw was not
cited as a respondent in the application. The applicants sought an
order – in the form of
a
rule
nisi
returnable on 4
March 2014 – interdicting the Municipality from proceeding with
the disciplinary enquiry against the second
applicant, until the
dispute they had referred to arbitration was resolved.
12.
Before the matter could be
heard, the notice of motion was amended. In terms of the amended
notice of motion the applicants, now
having joined Mr Louw as the
second respondent, sought a final order on the same terms. The
amendment was made on 5 February
2014 and the matter was argued on 6
February 2014.
13.
Lagrange
J delivered his judgment on 26 February 2014. He addressed, in
full, the question of interim relief. After
criticizing the
applicants for their failure to approach the chairperson before
coming to court, Lagrange J concluded:-
“
Had
the chairperson’s action on that occasion halted the
proceedings, pending the resolution of one or more of the in limine
objections, the applicants would have achieved substantially the same
relief they sought by way of an interim interdict, without
incurring
the same costs. If he refused to discontinue the proceedings
and insisted on them resuming then the applicants
might well have
considered at that point launching these proceedings at least insofar
as they raise issues going to the very lawfulness
of the enquiry.”
[1]
14.
After
making these remarks, Lagrange J turned to the question of the
application for final relief. He said that the application
had
been brought on “wholly insufficient notice” and as a
result should be dismissed for lack of urgency. It was on
this
account that the application for final relief was dismissed.
15.
The
applicants then brought an application for leave to appeal.
When the matter came before me, the application for leave
to appeal
was still pending. Considerable time was spent during argument on the
effect of the decision to dismiss the application
for want of
urgency. The first respondent took the stance that the
application for final relief was pending before this court
and no
issue of interim relief pending any appeal could arise. On the
other hand, the applicants submitted that since the
application had
been dismissed, as opposed to being struck off the roll for lack of
urgency, they were entitled to apply for leave
to appeal.
16.
It
is not the first time that a procedural issue of this nature has
arisen. Courts have
“
One
of the grounds on which Patel J dismissed the applications was that
at their inception they had lacked urgency. This was
erroneous. Urgency is a reason that may justify deviation from
the time and forms the rules prescribe. It relates to
form, not
substance, and is not a pre-requisite to a claim for substantive
relief. Where an application is brought on the
basis of
urgency, the rules of court permit a court (or a Judge in chambers)
to dispense with the forms and service usually required,
and to
dispose of it ‘as to it seems meet’
(Rule 6(12)(a)).
This in effect permits an urgent applicant, subject to the court’s
control, to forge its own rules which must ‘as
far as
practicable be in accordance with’ the rules. Where the
applicant lacks the requisite element or degree of urgency,
the court
can for that reason decline to exercise its powers under
Rule
6(12)(a).
The matter is then not properly on the court’s
roll, and it declines to hear it. The appropriate order is
generally
to strike the application from the roll. This enables
the applicant to set the matter down again, on proper notice and
compliance.”
[3]
17.
Although
it is clear that Cameron JA was addressing the Uniform Rules of Court
applicable in the High Court, his observations are
equally applicable
in respect of urgent proceedings brought under Rule 8 of the Rules of
the Labour Court. The essence of
Rule 8 of this Court’s
rules is the abridgement of the time periods prescribed in the rules
for the institution of urgent
applications. By the exercise of
its power under Rule 8, this Court can allow an applicant who
satisfies the requirements
stipulated by Rule 8 to “
jump
the queue
”
and get their matter heard without complying with the rules as would
ordinarily be required. A decision on urgency
does not
ordinarily implicate the merits of the case. The merits would
remain to be dealt with, either in the urgent proceedings
or at an
application in due course. 18.
In
the case of
Vena
& Another v Vena & Others
2010 (2) SA 248
(ECP) the court considered the implications of the
Hawker
decision.
What had happened is this. In the course of proceedings concerning
the division of a joint estate after a divorce, an
urgent application
for interim relief was brought (pending a trial) concerning a clause
in the settlement agreement which had been
concluded between the
parties. The application for interim relief was dismissed for lack of
urgency. The losing party brought an
application for leave to appeal,
relying on the
Hawker
decision.
It was contended that the order dismissing the application for lack
of urgency was erroneous and on that account leave
to appeal should
be granted. Jones J dismissed the application for leave to appeal. In
doing so, he noted (without deciding) that
it was doubtful that the
Hawker
decision
was intended to cover instances where a court dismissed an
application because the urgent procedure itself had been a subject
of
abuse. However, as matters turned out, this issue became a moot
point because he dismissed the leave to appeal on the
merits –
finding that there was no prospect that another court could come to a
different outcome on the merits.
[4]
Vena
’s
decision is therefore of limited assistance in situations such as the
present, where an application is dismissed for lack
of urgency.
19.
More
recently in
PT
Operational Services (Pty) Ltd v RAWU obo Ngwetsana
,
[5]
the Labour Appeal Court considered the issue of dismissal of
applications on the grounds of urgency in a context similar to the
present. After exploring the
dicta
in
Hawker
and
Vena
Musi AJA concluded:-
“
Although
I agree that the appropriate order in a matter where urgency has not
been shown should be striking the matter from the
roll, it seems to
me that even where the word ‘dismissed’ is used it does
not necessarily mean that the dismissal amounts
to a final order.
One will still have to enquire, where there is doubt, whether the
matter was dismissed on the merits or
not. If it was dismissed
on the merits then the order is final. If not, then it is not
final. A finding that
a matter is not urgent does not mean that
there are no merits in the applicant’s case. Even if a
matter is dismissed
for lack of urgency it can and should be
re-enrolled. To reason otherwise would be to allow form to
triumph over substance.”
[6]
20.
It
seems therefore that the decisions of
Hawker
and
PT
Operational Services
suggest that I am not bound by the use of the word “dismissed”
in the order by Lagrange J in relation to the application
for final
relief. I am required to ask whether or not he dismissed the
application on its merits. If he did not dismiss the
application on the merits, it is open for me to consider the merits.
A contrary approach would elevate form above substance.
21.
When
examining the judgment of Lagrange J, it is clear that he did not
intend to deal with the application on its merits.
He indicated
that the two applications were being dismissed because the applicant
had not approached the chairperson of the disciplinary
enquiry for
relief before coming to court and the amended application for final
relief was in any event not urgent. He also
stated that after
the applicant had approached the chairperson for an appropriate
order, he could come to court for relief.
22.
What
Lagrange J wanted, in essence, was for the parties to explore
internal remedies before coming to court. He was not trying to
close
the door of this Court to the merits of the application. It would be
inappropriate and contrary to section 34 of the Constitution
to read
the judgment of Lagrange J as effectively refusing the applicants the
opportunity of having the merits of their case considered
by this
Court. It is so that the applicants have brought an application for
leave to appeal. But I cannot see that the application
for leave to
appeal has any merit. If granted, it would mean that the Labour
Appeal Court is required to consider an appeal without
any
pronouncement being made by this Court on the merits of the
applicants’ complaint. This would render the Labour Appeal
Court the court of first and last instance in respect of the merits
of the case.
23.
I
am accordingly satisfied that the applicants are entitled to bring
their application for determination of the merits and to do
so on
urgent grounds before this Court.
24.
At
this stage, it is important to observe that the applicants have since
approached the chairperson, who dismissed their objections
to the
disciplinary enquiry. One of the issues raised by the
applicants goes to the very heart of the chairperson’s
jurisdiction. It is doubtful whether Mr Louw could pronounce upon his
own jurisdiction.
[7]
25.
Accordingly,
I propose allowing the applicants to bring their application as one
of urgency and will accordingly abridge the time
periods which are
prescribed by the rules. But there is a further procedural
issue to deal with, which is whether final relief
should be granted.
SHOULD
FINAL RELIEF BE GRANTED?
26.
Since
the application was approached principally as one for interim relief,
I requested the parties to address me on whether I could
grant final
relief if I took the view that it was open for the applicants to come
to court on the same papers, properly supplemented.
The parties have
addressed the issue. Their submissions are, perhaps not
surprisingly, divergent. The applicants take
the view that
final relief would be permissible and that they have in fact sought a
final order in their notice of motion, under
the heading “
further
and /or alternative relief
”.
While the respondents deny the propriety of the relief now sought by
the applicants, they have not sought (upon my
invitation) to file
additional evidence, and have argued the matter on the papers as they
stand.
27.
The
question whether a court can grant an order on a final basis where it
has not been specifically prayed for, came up for consideration
before the Labour Appeal Court in
MEC
of the Department of Education, Eastern Cape v Gqebe
.
[8]
Khampepe ADJP (as she then was) noted that it is not desirable for
courts to decide important aspects of cases without affording
the
parties an opportunity to deal with the issues, particularly where
they arise after the hearing.
28.
The
court distilled the applicable principles to the following. A court
can grant an order under the rubric of “
further
and/or alternative relief”
where:-
1.
A
basis has been laid for such relief in the founding affidavit and the
papers read as a whole; and
2.
The
order sought is not inconsistent with the substantive relief
claimed.
[9]
29.
I
am satisfied that, on these papers, it is open for the applicants to
ask for final relief. A basis for the relief sought is made
out on
the papers. The final relief, which they now seek, is not incongruent
with the interim relief which was sought. In addition
to the factors
identified by Khampepe ADJP, I would add that a court must also be
satisfied that no undue prejudice would be suffered
by the opposing
party if relief not specifically asked for is granted under the
prayer of further and/or alternative relief. In
this case no undue
prejudice would be suffered by the Municipality should I take this
approach. Its case has been fully pleaded.
It has not
indicated, in response to my directions, any intention of making
additional factual averments. In any event, in
an application
for final relief where there are disputes of fact I am required to
prefer the version of the respondents.
30.
I
now turn to the merits of the case.
THE
AUTHORITY TO INSTITUTE DISCIPLINARY CHARGES AGAINST THE APPLICANT
31.
The
second applicant has stated that in terms of his “
conditions
of employment
”,
the Municipality can only charge him with misconduct and proceed with
any disciplinary proceedings against him if the Council
of the
Municipality resolves to do so. Although this has been “
noted
”
by the Municipality, it has not been denied.
32.
I
must accordingly consider whether a lawful resolution was passed by
the Council to charge the second applicant with misconduct.
The
relevant resolution was taken on 11 December 2013.
33.
It
is common cause that the Council of the Municipality consists of
seventy (70) councillors. The second applicant contends
that
the quorum is the majority of councillors (thirty-seven (37)) or, as
it is put in the founding affidavit, “
50%
plus one of councillors present
”.
In the answering affidavit, the Municipality denies this and alleges
that the quorum for “
a
validly constituted council meeting
”
is thirty-six (36) members. I will accept that the quorum is 36
members, as is suggested by the Municipality.
34.
On
the day in question, 11 December 2013, at the commencement of the
meeting 36 members of the Council were present and signed the
attendance register. When the item pertaining to the proposed
disciplinary steps against the second applicant came up for
debate,
Mr Hart, a councillor representing the Democratic Alliance, noticed
that there were fewer than 36 members of Council present.
He
informed the speaker of this fact.
35.
The
speaker caused a count of the remaining councillors.
Subsequently, he ruled that since at the commencement of the meeting
36 members of council were present, it did not make a difference that
at the time of the vote being taken the meeting was no longer
quorate. The speaker then directed that the item be debated and voted
upon. Mr Hart, who has deposed to an affidavit in these
proceedings, thereafter left the meeting together with nine other
councillors, two of whom were members of the Freedom Front Plus
and
the other seven, members of the Democratic Alliance. At the
time that Mr Hart and the nine other councillors left the
meeting,
the debate about the taking of disciplinary steps against the second
applicant had not yet commenced.
\
36.
There
is no dispute about these facts in the answering affidavit. The
case of the Municipality is that since the meeting was
quorate at the
time of its commencement (with 36 members present), it remained
quorate throughout. It made no difference that certain
of these
members left the meeting before the vote at issue was taken. It
is common cause that at the time that vote was taken,
there were no
more than twenty-six (26) councillors present. The decision
that was taken by the remaining 26 councillors
is the following:-
“
RESOLVED
(a)
That
disciplinary proceedings be instituted against Mr A G Strydom
pursuant to considering the report by Mr W P Scholtz dated 6
December
2013.
(b)
That
allegations of misconduct against Mr A G Strydom constitute
misconduct of a serious nature.
(c)
That
the municipal manager be authorized to appoint and sign the letters
of appointment of –
(1)
An
independent and external presiding offer; and
(2)
An
officer to lead evidence.”
37.
Having
taken the decision to institute disciplinary proceedings against the
second applicant, further decisions were taken to implement
it.
Mr Louw was appointed to chair the disciplinary enquiry; Mr
Scholtz was appointed to lead evidence on behalf of
the Municipality;
and the second applicant was invited to attend the disciplinary
enquiry. Because of the court challenges described
above, the
disciplinary proceedings against the second applicant have not yet
commenced.
38.
Unlike
the case of
De
Vries & Others v Eden District Municipality & Others
[10]
this case does not concern the question of whether a quorum refers to
the total number of councillors prescribed by legislation
or actual
incumbents. In this matter, I have found on the evidence that
the quorum is 36. The only issue is whether
this is a quorum
required for convening a meeting or for the taking of a vote on a
particular matter.
39.
The
starting point is the Constitution. The quorum debate must take place
in the context of the broader constitutional framework
about the
place of local government in the Constitution. Under section 40 of
the Constitution, 1996, there are three spheres of
government.
They are national, provincial and local. The spheres are
“
distinctive,
interdependent and inter-related
”
(section 40(1) of the Constitution).
40.
Section
151 provides for the establishment of municipalities to which the
legislative and executive authority of the local sphere
of government
vests (section 151(2) of the Constitution).
41.
The
autonomy of municipalities is entrenched by sections 151(3) and (4)
of the Constitution. These sections give the municipalities
the
right to govern the local government affairs of the community,
subject to provincial and national legislation, and to prevent
the
national and provincial spheres from compromising or impeding the
ability of municipalities to govern themselves.
42.
The
objects of local government include:-
42.1
the
provision of democratic and accountable government for local
communities;
42.2
the
provision of services to communities; and
42.3
the
promotion of social and economic development (section 152(1) of the
Constitution).
43.
The
Constitution requires legislation to be passed dealing with the
establishment of the different categories of municipalities
and their
functions (section 143 of the Constitution).
44.
The
Municipal Structures Act 117 of 1998 (the Structures Act) has been
passed pursuant to section 154 of the Constitution.
The
Structures Act deals with a host of issues relevant to the structure
of municipalities. This includes the term of office
of
municipal councils, the filling of vacancies by way of by-elections,
the terms of office of councillors, procedures for the
vacation of
office, meetings of councils, quorums and decision making.
Section 30(1) provides that “
a
majority of the councillors must be present at a meeting of the
council before a vote may be taken on any matter.
”
45.
Section
30(1) of the Structures Act, it will be observed, echoes the
provisions of section 160(3) of the Constitution, which says:-
“
A
majority of the members of a municipal council must be present before
a vote may be taken on any matter.”
46.
As
noted above, the version of the first respondent is that the
“
majority
”
contemplated by these sections is 36 members. The dispute is
whether that majority of 36 must be present for convening
a meeting
or the taking of a vote on a particular matter.
47.
The
interpretation favoured by the Municipality was argued to flow from
the provisions of the rules and orders of the first respondent.
These rules were passed by the Municipality on 17 October 2006
as Local Authority Notice 315 and constitute binding by-laws
of the
Municipality. Some salient provisions must be mentioned.
47.1
In
terms of clause 2.1 of the rules, the speaker is obliged to convene
ordinary meetings of the Council, which must be held every
month
excluding December. However, if “
a
majority of councillors
”
request the speaker to convene a special council meeting the speaker
is under an obligation to convene such meeting.
47.2
The
quorum to “
constitute
a meeting of the council
”
is “
at
least 50% plus one
”
of members, excluding the speaker in terms of clause 3.1.
47.3
In
terms of clause 4.1 if, during any meeting, the attention of the
speaker is drawn to the issue of the number of members present,
such
members shall be counted and if it is established that there is no
quorum “
the
speaker shall cause the call bell to ring for at least one minute and
after an interval of five minutes there is still no quorum,
the
speaker shall forthwith adjourn the meeting
.”
47.4
The
quorum referred to in clause 4.1 of the rules is clearly the quorum
mentioned in clause 3.1, namely, the quorum for the convening
of a
meeting. In other words, the rules envisage that there must always be
at least 50% plus one members throughout the meetings
of the Council.
48.
In
my view therefore, it is clear that the quorum referred to in the
rules of the first respondent, is not limited to the quorum
at the
commencement of a meeting
per
se
.
Had that been the case, the provisions of clause 4.1 would have been
redundant. There would have been no need to adjourn
the meeting
if it is established that a council meeting is no longer quorate
.
The
only enquiry would have been whether at the commencement of the
meeting there was a quorum.
49.
In
any event, to the extent that there is any inconsistency between the
rules and the applicable legislation or the Constitution,
the latter
must take precedence. It is clear from the provisions of
section 30(1) of the Structures Act and section 160(3)
of the
Constitution that the quorum refers to the quorum before “a
vote may be taken on any matter”. Therefore,
should there
be any lack of clarity in relation to the quorum requirements as
prescribed by the rules and orders of the Council,
that question is
answered by the Structures Act and the Constitution.
50.
It
was argued on behalf of the Municipality that the quorum requirement
urged upon me by the applicants could produce the undesirable
consequences of frustrating the functioning of municipal councils by
acts such as deliberate absenteeism on the part of some councillors.
It was also said that account should be taken of the fact that it was
representatives of the Democratic Alliance and the Freedom
Front Plus
who left the council meeting before the vote was taken. I have
great difficulty accepting this submission.
If the quorum is
set at 36, as the municipality argues, I cannot declare it as being a
different number simply to accommodate the
hard politics at play
within the Municipality.
51
.
Moreover,
on the facts of this case, the functioning of the Municipality has
not been frustrated by acts of absenteeism on the part
of
councillors. Nor has it been frustrated by the failure to
achieve required majorities. The version of the Municipality
is
that it was able to secure the necessary quorum and the required
majority in two meetings held before the decision to charge
the
second applicant. In addition, subsequent to the meeting of 11
December 2013, there was another meeting held where there were
no
difficulties with quorum and majority. There is accordingly no
foundation for this submission.
52.
The
Municipality has also asked me to take into account the resolutions
of 15 October 2013 and 1 November 2013. It has been
submitted
that these resolutions show that the Municipality “intended”
to institute disciplinary proceedings against
the second applicant.
Furthermore, I have been referred to the meeting of 31 January 2014
where the Municipality resolved
to “
unanimously
take cognizance of the progress report
”
in the disciplinary proceedings against the second applicant.
53.
The
difficulty facing the Municipality in relation to these submissions
is that there is not a single meeting where the decision
taken on 11
December 2013 was ratified or approved by a duly constituted meeting
of the Council. The fact that they intended
to take
disciplinary actions against the second applicant in October and
November 2013, does not answer the question whether, when
the
decision was in fact taken at the meeting of 11 December 2013, such
meeting was quorate. Similarly, the meeting on 31
January 2014
simply noted the progress report without expressing itself at all as
to whether the decision was being ratified or
approved. It is
not clear to me that the decision is in any event capable of
ratification. However, since no argument
was made on that
score, I prefer to leave that issue open.
54.
The
fact of the matter is that if the Municipality wishes to take a
decision, it must do so lawfully and in compliance with its
rules and
the applicable legislation. This is in keeping with the salutary
principle of legality. Legality is a key aspect of the
rule of law,
which is mentioned in section 1 of the Constitution as constituting a
founding value of our constitutional democracy.
Municipalities
and their councils must also act in conformity with the principle of
legality.
[11]
Where
rules are set, they must be scrupulously observed. They cannot
be dispensed with for political expedience.
That compliance may
prove challenging in a particular case, because of obstructionist
conduct of politicians, is not a justification
to jettison the
rules. It is particularly important that a municipal council,
the highest political organ at local government
level, should comply
with the law. If it breaches the law, it will lose political
legitimacy. A political system without
legitimacy can only
survive by authoritarian methods, which are in conflict with the
foundations of the Constitution.
55.
I
have found that the interpretation proposed by the Municipality in
regard to the quorum requirement is wrong. At the time
the
decision was taken to institute disciplinary proceedings against the
second respondent, it did not comply with the rules of
the
Municipality, the Structures Act and the Constitution. This
renders the decision unconstitutional and invalid.
56.
In
reaching this conclusion, I am, at least in part, influenced not
simply by the text, which I have dealt with above, but also
by
principle. In South Africa, the legal position as enunciated by
Lawrence Baxter in
Administrative
Law
(1984) 429 is that unless a quorum is specified in legislation,
decisions of a board such as the present must be taken by all
members. This is because “
the
qualifications and number of members have been selected for a purpose
and that purpose would be defeated if the body were to
be deprived of
the services of one or more of its members.”
[12]
57.
This
principle emanates from the decision of
Schierhout
v Union Government (Minister of Justice)
1919
AD 30.
[13]
It has recently been endorsed by the Supreme Court of Appeal in the
context of the
Judicial Service Commission Act 9 of 1994
. The
question was whether a body like the Judicial Service Commission was
properly constituted in the absence of one of the members,
in that
case,the Premier of a province. The Act did not specify a quorum. In
Acting
Chairperson: Judicial Service Commission and Others v Premier of the
Western Cape Province
2011
(3) SA 538
(SCA), it was held that the Judicial Service Commission
had not been properly constituted and therefore its decisions were
unlawful
in the absence of the Premier.
58.
The
import of these decisions is that the failure to reach a quorum means
that no lawful decisions can be taken. The Council is
not properly
constituted. Section 35(1) of the Structures Act also shows the
premium which the legislature places on the quorum
requirement. It
says that where a municipality does not have enough members to form a
quorum for a meeting, the MEC for local government
“must”
appoint an administrator, either until elections are held or until
the required quorum can be met.
59.
Since
the decision taken on 11 December 2013 to take disciplinary measures
against the second applicant was invalid for breach of
the
Constitution, it cannot be allowed to stand. I shall make a
final order in this respect. It is not difficult to work
out what
should have happened in order for the decision to be lawfully taken.
Once Mr Hart drew the speaker’s attention to
the issue of the
quorum, the speaker should have caused a call bell for at least one
minute. If, after five minutes there was still
no quorum, the speaker
should have adjourned the meeting. I cannot say what would have
happened at the next meeting, but it is
significant that there seems
to have been no difficulties with the quorum at the next meeting of
the Council, notwithstanding the
fact that one of the items discussed
was the progress report in the disciplinary enquiry against the
second applicant.
60.
Argument
was also raised in the founding affidavit and heads of argument
pertaining to the violation of the
Protected Disclosures Act by
the
Municipality. I wish to turn to that issue briefly.
THE
PROTECTED DISCLOSURES ACT
61.
The
case of the second applicant in this regard is that during the course
of the first half of 2013, he was assisting a Warrant Officer
Jaco
van den Berg (who is part of the Commercial Crime Investigating Unit
or the Hawks at the South African Police Service) to
investigate
allegations of tender fraud at the Municipality. In about May
2013, the Municipality’s Director of Infrastructure,
Mr R
Mukondelili, informed the second applicant that the Municipal Manager
of the first respondent, Mr Elias Tsietsi Motsemme,
had tried to
influence him to include a tender submission received after the
closing date of the tender process. That tender
relates to “
NEP
Consultants
”.
62.
The
second applicant also stated that Mr Mukondelili had told him that Mr
Motsemme threatened Mr Mukondelili with dismissal if he
did not carry
out his instructions of including a tender after the closing date.
As matters turned out, the tender was not
included. The second
applicant conveyed this message to Mr van den Berg.
Furthermore, the second applicant says that
he was contacted
telephonically on four occasions by Mr Motsemme enquiring about the
validity of the tender process. On 6
May 2013 there was a
further attempt on the part of Mr Motsemme to contact the second
applicant concerning the tender. As
a result of these
conversations the second applicant made another disclosure to Mr van
den Berg and also told Mr van den Berg about
Mr Motsemme’s
motor vehicles. The allegation is that Mr Motsemme owned a
Maserati M139 Quatroport, BMW 3 Series 303
ICA, BMW DBX 462, BMW X5,
and a Mercedes Benz R171, all of which were “
highly
expensive vehicles
”.
(Mr Motsemme does not deny owning any of these vehicles, but he says
he was able to finance them using his own resources.)
63.
It
seems common cause on the papers that Motsemme became aware of the
communication between the second applicant and Mr van den
Berg.
There was contact between the second applicant and Mr Motsemme,
during which Mr Motsemme informed the second applicant
that he was
aware of his communication with Mr van den Berg.
64.
The
second applicant then says he became aware in September or October
2013 that he was under investigation by the Municipality’s
Chief Audit Executive who, it is alleged, had been asked by Mr
Motsemme to conduct the investigation.
65.
This
allegation is strongly denied by the Municipality. The
documents that have been produced as part of the answering affidavit
of the Municipality show that the decision to conduct an
investigation into the second applicant’s department was not
taken
by Mr Motsemme, but by Councillor L T Mabunda, in his capacity
as chairperson of the Municipal Public Accounts Committee.
That
decision was taken on 2 August 2013. It was in the form of a written
instruction to Mr Motsemme to conduct an investigation
into
expenditure on legal fees for the 2006 to 2009 financial years.
It appears that the scope of the investigation was subsequently
extended to include the years 2010, 2011 and 2012.
66.
That
issue was again discussed by the Municipal Public Accounts Committee
at its meeting of 8 October 2013, where it appears to
have been noted
that an investigation was under way.
67.
The
report of the investigation was tabled on 15 October 2013 to the full
Municipal Council. It is notable that the report
is of a
generic nature, referring simply to “
fruitless
and wasteful expenditure
”
in the second applicant’s department. Furthermore, the
recommendation by the Municipal Public Accounts Committee to
the full
Council was that two employees, the second applicant and the
Assistant Director of Labour Relations should be placed on
“administrative leave” so that the outcomes of the report
which implicated them should be investigated.
68.
There
are 13 charges against the second applicant. None of these
charges concerns the fact that the second applicant contacted
Mr Van
den Berg. It is said that some of the charges emanate from the report
of the Municipal Public Accounts Committee. I do not
think it is
appropriate to dwell on these charges at this stage because they may
well be considered at a properly constituted disciplinary
tribunal
should the Municipality elect to proceed with the enquiry.
69.
Against
this background I must consider whether there is any basis for the
claim that the Municipality has committed an occupational
detriment
by instituting disciplinary charges against the second applicant.
The starting point is
section 3
of the Protected Disclosures Act
(“the Act”). It says that no employee may be
subjected to any “
occupational
detriment
”
by his or her employer on account, or partly on account, of having
made a protected disclosure. An occupational detriment
as
defined by section 1 includes a suspension and the taking of
disciplinary action against an employee. A protected disclosure
also includes a disclosure made to one’s employer or any other
person or body in accordance with the provisions of sections
8 and 9
of the Act.
70.
In
terms of section 4 of the Act, a person who is subject to an
occupational detriment in violation of section 3 may approach any
court having jurisdiction, including the Labour Court, for
appropriate relief or may pursue any other procedures allowed or
prescribed
by law.
71.
For
a disclosure to be protected, it must first qualify as a disclosure.
A disclosure is a “
disclosure
of information regarding any conduct of an employer, or an employee
of that employer, made by any employee who has reason
to believe that
the information concerned shows or tends to show one or more
”
of certain improprieties. These “
improprieties”
include the allegation that a person has failed or is failing or is
likely to fail to comply with any legal obligation to which
that
person is subject. It is important to note that the disclosures must
relate to “
information”
,
not “
subjectively
held opinions”
or accusations.
[14]
72.
Mr
Motsemme has denied the allegations made against him. But these
denials are not material for present purposes. The Act does not
require the information to be true. It simply requires that the
person making the disclosure must have “
reason
to believe
”
that an impropriety is being committed.
[15]
73.
In
my view, the information conveyed to Mr van den Berg by the second
applicant constituted a disclosure within the definition of
the Act.
The impropriety was that Mr Motsemme was trying to improperly
influence a tender outcome, which if true, would be a breach
of the
Municipal Finance Management Act 56 of 2003. In addition the
disclosure was that Mr Motsemme’s wealth and lifestyle
appeared
at variance with his earnings from the municipality. It is legitimate
for an employee to make these disclosures so that
they can be
investigated by the appropriate authorities. But the question in this
case is whether the disciplinary enquiry is being
pressed against the
second applicant “on account of” or “partly on
account of” making the disclosure.
74.
Several
cases have examined various facets of the Act. These include
the decision of
Minister
for Justice & Constitutional Development & Another v
Tshishonga
(2009)
30 ILJ 1799 (LAC);
City
of Tshwane Metropolitan Municipality v Engineering Council of South
Africa & Another
(2010) 31 ILJ 322 (SCA);
State
Information Technology Agency Ltd. v Sekgobela
(2012)
33
ILJ
2374 (LAC) and
Tshishonga
v Minister of Justice & Constitutional Development
[2007]
6 BLLR 327
(LC).
75.
It
seems, however, that in those decisions there was no controversy that
employees were being disciplined specifically for making
disclosures. So, for example, in
City
of Tshwane Metropolitan Municipality v Engineering Council of South
Africa & Another
,
the charge against the employee was that he wrote a letter to the
Department of Labour complaining about the appointment of system
operators at the City of Tshwane. That letter, for which the
employee was being charged, was itself a protected disclosure.
In
these circumstances the SCA concluded that the disciplinary action
against the employee was an occupational detriment as defined
by the
Act. Similarly, in
Radebe
v Premier, Free State & Others
,
the employees had written a critical letter about the MEC for
Education as well as the Minister for Education. The charge
of
misconduct against them was that they had written the letter in
question. The Labour Appeal Court prevented the employer from
taking
disciplinary action against the employees. The
Tshishonga
decision is also along the same lines: There was no dispute that the
charge against the employee was that he had made disparaging
remarks
against the Minister publicly. The “
disparaging
remarks”
were the allegations of an improper relationship between the Minister
and one of the liquidators, Mr Enver Motala.
76.
But
the present case seems to stand on a different footing. The
second applicant is not being charged for communicating with
Mr van
den Berg. Instead, what has happened is that after his
communication with Mr van den Berg, certain investigations
were
conducted which uncovered alleged acts of serious misconduct by the
second applicant. The question therefore pertains
to whether
the disciplinary action is on account of or partly on account of the
disclosure. This requires an examination of the
degree of nexus
between the decision to charge the second applicant and the
disclosures made to Mr van den Berg. This issue
has been
considered by Van Niekerk J in
Matteus
v Octagon Marketing (Pty) Ltd.
[16]
He stated that:
“
Of
course, there must always be a nexus between the occupational
detriment claimed and the disclosure – that nexus is
established
by s 3 of the PDA. Section 3 prohibits employers from
subjecting employees to occupational detriments ‘on account, or
partly
on account’ of having made a protected disclosure. What
is required to establish the necessary link is to determine whether
the disclosure is the proximate cause, even partially, of the
occupational detriment, be it a disciplinary hearing, a suspension
a
transfer or any other act contemplated by the PDA. Put another way,
it is sufficient for an applicant to show, on balance, that
the
prejudice suffered by him or her is wholly or partially attributable
to the protected disclosure made. This will ordinarily
require an
examination of the degree of temporal proximity between the
disclosure and the detriment, the reasons proffered for
the
occupational detriment, and the like.”
[17]
77.
Thus,
what I am required to establish is the “proximate cause”
of the disciplinary enquiry. It is clear that a disciplinary
enquiry
against an employee need not necessarily be the direct result of a
disclosure. I propose that a useful and practical approach
is to
consider factors such as (i) the timing of the disciplinary enquiry;
(ii) the reasons given by the employer for taking the
disciplinary
steps; (iii) the nature of the disclosure; (iv) and the persons
responsible within the employer for taking the decisions
to institute
charges. I do not propose to cast these factors in iron, but they
seem to be practical pointers towards unpacking
the substantive
content of the test of “proximate cause” posited by Van
Niekerk J.
78.
With
this framework, I consider the facts. The Municipality denies that
there is any nexus between its decision to charge the second
applicant with misconduct and the disclosures made to Mr van den
Berg. It has explained by reference to documents how the
decision to charge the second applicant was arrived at. I must
accept the version of the Municipality in this regard.
Not only
am I bound by legal principle, but the version has credence. It
is significant that the decision to charge the second
applicant was
not taken by Mr Motsemme but by the Municipal Public Accounts
Committee, a sub-committee of the Council. It
was that
committee which decided to institute a widespread investigation, not
specifically targeted at the second applicant, concerning
expenditure
on legal fees. Once that investigation was completed, it is not
reasonable to expect that it would not be acted
upon.
79.
The
second applicant has alleged that the entire methodology of the
investigations and subsequent resolutions by the council is
consistent with Mr Motsemme’s “
modus
operandi
”.
The allegation is that Mr Motsemme is something of a schemer –
he apparently goes around lobbying councillors
to secure their vote
towards a particular outcome favourable to him. This again is
disputed and I cannot say, on these facts, that
the disciplinary
enquiry was orchestrated by Mr Motsemme consequent upon being aware
of the disclosures made to Mr Van den Berg.
80.
I
am therefore not able to find that the disciplinary actions against
the second applicant were on account of, or partly on account
of his
having made the disclosures to Mr van den Berg. That being
said, the facts show that Mr Motsemme may well have a case
to
answer. I would imagine that it is in the interests of the
Municipality to take appropriate action to ensure that the
allegations against Mr Motsemme are properly investigated and, if
there is any substance to them, properly dealt with. But
that
is not for me to decide in these proceedings. I have concluded that
the charges against the applicant do not constitute an
occupational
detriment in terms of the
Protected Disclosures Act.
ORDER
81
.
In
the above circumstances I make the following order:-
(1)
The
application brought by the applicants will be dealt with as one of
urgency and the rules of court and the forms of service will
be
abridged accordingly.
(2)
The decision of the first respondent taken
on 11 December 2013 to charge the second applicant with misconduct
and to take the related
steps is declared to be unconstitutional,
unlawful and invalid.
(3)
The first respondent is interdicted from
proceeding with the present charges of misconduct against the second
applicant, unless
the Council, properly constituted, resolves
otherwise.
(4)
The disciplinary proceedings against the
second applicant do not constitute an occupational detriment in terms
of the Protected
Disclosures Act.
(5)
The first respondent is ordered to pay the
costs of the applicants in this application.
_____________________________________
TEMBEKA NGCUKAITOBI
ACTING JUDGE OF
THE LABOUR COURT OF
SOUTH AFRICA
APPEARANCES
For
Applicants:
Mr M van Staden
(Savage,
Jooste & Adams)
For
the first respondent:
Mr C Scholtz
(Scholtz
Attorneys)
[1]
IMATU
& Another v The City of Matlosana Local Municipality &
Another
(J82/14
delivered on 26 February 2014) at para 8.
[2]
2006 (4) SA 292 (SCA).
[3]
At para 9, footnotes excluded.
[4]
See
Vena
at
paras 7 and 8.
[5]
(2013) 34 ILJ 1138 (LAC).
[6]
PT
Operational Services
at
para 35.
[7]
See the decisions of
SA Rugby Players Association & Others v
SA Rugby (Pty) Ltd & Others
(2008) 29 ILJ 2218 (LAC) at para
40 and
Benicon Earthworks & Mining Services (Edms) Bpk
v Jacobs N.O. & Others
(1994) 15 ILJ 801 (LAC) at 804C-D.
[8]
(2009) 30
ILJ
2388 (LAC).
[9]
See paras 27 to 29 of the
Gqebe
decision.
[10]
[2009] ZAWCHC 94
(17 June 2009).
[11]
Democratic
Alliance v Ethekwini Municipality
2012
(2) SA 151
(SCA) at para 21.
[12]
Baxter,
p. 429.
[13]
Schierhout
was
followed in
Yates
v University of Bophutatswana
1994 (3) SA 815 (B).
[14]
Communication
Workers’ Union v Mobile Telephone Networks (Pty) Ltd
(2003) 24
ILJ
1670 (LC) at para 22;
Van
Alphen v Rheinmetal Denel Munition (Pty) Ltd
[2013] 10 BLLR 1043
(LC) at para 39.
[15]
Radebe
& Another v Premier, Free State & Others
(2012) 33 ILJ 2353 (LAC) at para 33.
[16]
[2013]
ZALCJHB 317 (17 September 2013, as yet unreported). See too a
decision delivered a few days before the handing down of
this
judgment:
Ngobeni
v Minister of Communications and Another
(J08/14) [2014] ZALCJHB 96 (3 April 2014, as yet unreported).
[17]
Matteus
at
para 12.