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[2014] ZALCJHB 171
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Mautitious and Others v Maquassi Hills Local Municipality and Others (J816/2014) [2014] ZALCJHB 171 (12 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: J816/2014
KHAUOE
MALOISANE
MAUTITIOUS
....................................................................
First
Applicant
MODISADIFE
MOTSAMAI
DAVID
......................................................................
Second
Applicant
HLONGWANE
MPHO
ANDREW
.......................................................................
Third Respondent
and
MAQUASSI
HILLS LOCAL
MUNICIPALITY
......................................................
First
Respondent
JONAS
ITUMELENG RONALD
NO
..................................................................
Second
Respondent
MOTALA
MOHAMMAD IQBAL
NO
....................................................................
Third
Respondent
Heard:
25 April 2014
Delivered:
13 May 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
INTRODUCTION:
[1]
The applicants approached the court on an urgent basis in terms of
section 158 (1) (c) of the Labour Relations Act, or alternatively,
in
terms of section 77 (3) 4 and 77A of the Basic Conditions of
Employment Act and sought an order in the following terms:
1.1
“
That the Settlement Agreement, dated
17 March 2014 attached to the Applicants’ founding affidavit as
Annexure “B”,
be made an order of this Honourable Court.
1.2
That the 1
st
and 2
nd
Respondent place the Applicants in appropriate positions, in
accordance with the aforementioned Settlement Agreement, within 7
days of this order.
[2]
The first and second respondents opposed the application, and
simultaneously filed a counter application, seeking relief that
the
Settlement Agreement, dated 17 March 2014, as attached to the
Applicants’ founding affidavit be declared to be
of no force
and effect against the first respondent.
[3]
The matter was initially set-down for hearing on 15 April 2014. As
per the order issued by the Honourable Lallie J, the matter
was
postponed by agreement in order to allow the parties to file further
pleadings.
BACKGROUND
:
The
matter under J2009/2012:
[4]
It is common cause that on 30 August 2012, the applicants launched an
application under case number J2009/2012 in terms of which
they
sought a declaratory order to the effect that they remain employed by
the first respondent with effect from 1 December 2011
in various
positions. In the alternative, they sought an order that the
purported termination or cancellation of their appointments
by the
first respondent to be declared invalid, unlawful and of no legal
force and effect, and to be set aside. That matter was
opposed by the
first and second respondents.
[5]
The circumstances that led to the matter under case number J2009/2012
are briefly as follows:
The
applicants contend that they were appointed in terms of five year
contracts in various capacities by the first respondent’s
erstwhile Municipal manager, Mr. M Mapholi with effect from 1
December 2011. They reported for duty on 1 December 2011 in terms
of
their letters of appointment. The said Mapholi however informed them
on or about 6 or 7 December 2011 that they could not be
employed in
their respective positions as their letters of appointment were not
signed, and they received assurances from the office
of the Speaker,
in which they were to be employed, that this matter was to be
resolved soon. They nevertheless continued to present
themselves for
service until 20 December 2011 when the Speaker’s offices
closed for the festive season. On 20 January 2012
they reported for
duty and approached the second respondent (Jonas), who was then the
acting Municipality Manager. The latter informed
them that they
should stop reporting for duty as they were not properly appointed.
He also escorted them off the first respondent’s
premises. The
applicants further contended that they were prevented from rendering
their services notwithstanding the fact that
the first respondent had
passed a Council resolution approving their appointments.
The
Settlement Agreement:
[6]
The first respondent was placed under Administration effective from 1
April 2013 pursuant to a Provincial Executive Committee
decision to
invoke the provisions of section 139 (1) (b) of the Constitution of
the Republic of South Africa. In terms of these
provisions and with a
view of rescuing dysfunctional local municipalities, the North West
Provincial Government has assumed all
executive powers of the first
respondent’s Council and administration. The third respondent,
Mr Iqbal Motala (Motala) was
appointed by the MEC for Local
Government and Traditional Affairs as Administrator. The placing of
the first respondent under the
administration has placed Jonas and
Motala on a collision course.
[7]
The applicants contend that during August 2013, Motala had approached
their attorney of record with a view of resolving various
labour
disputes in which their attorneys acted. Various meetings were held
between the applicants’ attorneys and Motala or
his associates
from September 2013. Following such meetings, on 17 March 2014, the
parties entered into a settlement agreement
which recorded the
following:
“
Whereas
the Applicants have brought an
application under case number J2000/12 for an order declaring them to
remain employed with the Respondent
with effect from 1 December 2011,
alternatively to have the termination of their services declared
invalid, unlawful and of no
legal force and effect and therefore set
aside.
Whereas
the Applicants seek to be
reinstated as follows;
1
st
Applicant in the position as Administrator: Office of the Speaker;
2
nd
Applicant in the position as CLO: Office of the Speaker; and
3
rd
Applicant in the position of CLO: Office of the Speaker.
And
Wereas
(Sic)
the Parties wish to settle this matter,
the parties therefore agree to the following:
1.
The
Respondent will undertake a matching and placing exercise to
determine the appropriate placement of the Applicants, which exercise
will be finalised by 28
th
February 2014.
2.
The
Respondent will apoint the Applicants in appropriate vacant
positions, which appointment(s) would be subject to the same terms
and conditions as the Applicants’ original appointments.
3.
The
Applicants will be appointed with effect from 1 April 2014. In the
event of the Respondent not being able to place the applicant
in
appropriate vacant positions by 1
st
March 2014, the Applicants agree to be placed temporarily in other
positions.
4.
Each
party shall pay its own costs in respect of the application under
case number J209/12.
5.
The
Applicants will withdraw this application upon being issued with
their appointment letters.
6.
This
agreement will be in full and final settlement of the Applicants’
application under the above-mentioned case number.
7.
The
parties further agree:
7.1
That this agreement may be made an order of the Labour Court;
7.1 That the
party in default with reference to the terms of this agreement
obliging the aggrieved party to proceed with an application
as per
paragraph 7.1 herein above, will be liable for the costs of such an
application on a scale as between attorney and own client”
[8]
The applicants’ contention was that the Director of Corporate
Services, who was present when the agreement was entered
into has
since prepared their letters of appointment, but that Jonas has
refused to sign those letters
[1]
.
They reported for duty on 1 April 2014, and Jonas informed them that
he could not comply with the Settlement Agreement as it might
be
regarded as fruitless and wasteful expenditure. He further informed
the applicants that they should approach their attorneys
of record
and instruct them to immediately bring an urgent application to make
the settlement an order of Court as it would allow
him to comply with
the agreement, and that they would receive their remuneration
retrospectively as soon as the agreement was made
an order of court.
[9]
In his answering affidavit to this application, Jonas raised a number
of issues as to the reason he had refused to implement
the settlement
agreement, some of which were wholly irrelevant for the purposes of
this application. Pertinent to the application
were the following:
9.1 Having opposed
the application under J2009/12, nothing further occurred, and the
applicants had not filed a replying affidavit
nor proceeded to set
the matter down for adjudication. In essence, the applicants had
abandoned pursuing relief in that application.
9.2 He had disputed
the legitimacy of the appointment of Motala in numerous respects. In
this regard, he had contended that the
appointment of Motala by the
MEC for Local Government and Traditional Affairs, North west Province
as Administrator in terms of
section 139 (1) (b) of the Constitution
in April 2013 was the product of an improper procedure which
contravened the provisions
of section 139 of the Constitution. This
appointment was therefore irregular.
9.3 Motala had
usurped all responsibilities, duties and powers of Council and the
Municipal Manager which are provided for in legislation,
and had
issued a number of notices and letters which do not resort within his
authority and powers in terms of his appointment
under section 139 of
the Constitution.
9.4 Motala had
informed him that he was executing his mandate, and that his
appointment rendered his (Jonas’) insignificant
in the
management of the first respondent. In this regard, Motala
inter
alia
adopted the view that the first respondent was involved in
unneccessary litigation, and that all pending matters and application
should be settled in favour of the applicants and plaintiffs and that
settlement agreements should be concluded in that regard.
9.5 Motala’s
conduct in usurping all his duties and responsibilities was unlawful,
and violated the delegation of powers of
the Council without
following proper procedures. Since Motala’s terms of reference
were
ultra vires
, he (Jonas) had approached the North Gauteng
High Court under case number: 59078/13 and sought an order
inter
alia
, interdicting him from appointing 56 managers pending an
application to review and set aside his appointment.
9.6 Motala did not
have authority to conclude the settlement agreement on behalf of the
first respondent, and Jonas sought an order
that the agreement be
declared to be of no force and effect against the first respondent.
THE
ARGUMENTS AND DISCUSSION:
(i) The
appointment of the third respondent:
[10]
Following the postponement of the matter on 15 April 2014, and with
the leave of this court, the applicants filed a replying
affidavit in
which they had pointed out that the tenure of Motala as Administrator
has since been extended by the Executive Council
of the North West
Provincial Government for a further six months until the end of
september 2014. Motala had filed a confirmatory
affidavit in this
regard. To this end, any dispute surrounding whether Motala still
remains an Administrator is laid to rest.
(ii) Locus
standi: Jonas’ mandate and that of Phambane Mokone INC to
represent the first respondent:
[11]
The mandate of Jonas to oppose this application and his appointment
of attorneys Phambane Mokone Inc to act on behalf of the
first
respondent was placed in dispute. In this regard, the applicants
filed a Notice in terms of Rule 11 of the Rules of this
Court read
with Rule 7 of the Uniform Rules of the High Court, in terms of
which; (a) the attorneys of the first respondent were
requested to
file and serve a power of attorney, which power is to indicate their
authority to act on behalf of the first respondent
in this
application and in which capacity, the first or Jonas. (b) In the
event that the first respondent and Jonas were represented
on the
instruction of the latter in this application, a copy of the
resolution by the first respondent in terms of which Jonas
was
authorised to oppose this application and whereby the attorneys are
mandated to execute the opposition to this application.
(c) In the
absence of a resolution as required, a copy of a power of attorney
signed by any party by virtue of delegated power.
[12]
The concerns surrounding mandate of Jonas emanate from from two
previous judgments issued by this court. In this regard, it
was
contended that in a matter heard under case number J1362/12 before
this court, the Honourable Acting Justice Gaibie made an
ex
tempore
ruling to the effect that Jonas
de facto
acting as
the first respondent’s Municipal Manager was unlawful and that
he lacked authority to depose to an affidavit on
behalf of the first
respondent. That matter dealt with the period when Jonas was the
acting Municipal Manager, and is not relevant
for the purpose of this
application.
[13]
The applicants further relied on the judgment of the Honourable
Acting Justice Kumalo issued under case number J2931/12 who
had found
that Jonas’ subsequent appointment as Municipal Manager was
null and void
ab initio
. In making this finding, the
Honourable Kumalo AJ held the following in regards to the purported
appointment of the second respondent
as Municipality Manager;
‘
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:
(a)
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.”
[2]
And
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.
[3]
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’
[4]
.
[14]
In a different matter involving the first respondents and Jonas under
Case no J1472/13, the Honourable Steenkamp J had in considering
a
cost order, referred to the ruling of the Gaibie AJ and the judgment
of Kumalo AJ. Steenkamp J had ordered that Jonas, and the
current
attorneys purportedly acting on his and the first respondent’s
behalf, to pay the applicant’s costs in that
matter,
de
bonis propriis
on an attorney and client scale, jointly and
severally, the one paying, the other to be absolved.
[15]
In this case, Jonas contended that he had the necessary authority to
oppose this application, having relied on the disputed
fact that the
appointment had expired. This argument lost steam when it became
clear that the appointment of Motala was extended.
Jonas then relied
on what he deemed to be common cause fact that he was indeed the
Municipal Manager. This was notwithstnading
the finding of Kumalo AJ
under case number J2931/12 .
[16]
On the date of the hearing of this application Jonas had filed
a special powers of attorneys. This was notwithstanding
the fact that
on 27 May 2013, Motala had sent correspondence to Phambane Mokone INC
that henceforth, further instructions in pending
matters and
instructions in new matters shall be given by him to the exclusion of
all officials in the employ of the first respondent
including Jonas.
It is clear that such instructions and the purported powers of
attorney are in direct conflict with Motala’s
instructions of
27 May 2013. In the light of this specific instruction from the
Motala, who had executive authority, and further
in the light of the
conclusions reached by Kumalo AJ in the matter under
Case no:
J2931/12, I fail to appreciate how the Jonas can still insist that he
has authority to oppose this application.
[17]
Jonas’ contentions in paragraph 2.7.3 of his supplementary
affidavit to the effect that he and the first respondent have
intended to file an appeal against the judgment of Kumalo AJ is
hardly small comfort. Whilst it is correct that the judgment did
not
make an order to the effect that his appointment was reviewed or set
aside, that issue was not one, which Kumalo AJ had to
decide.
However, in determining a different issue, Kumalo AJ had made that
finding in respect of Jonas’ purported appointment.
In my view,
the fact that Jonas remains a Municipal Manager despite his
appointment being declared null and void, implies that
whatever
authority he has and any action he has taken purportedly on behalf of
the first respondent remains a nullity. The fact
that the first
respondent has not invoked the provisions of section 56 (6) of the
Municipal Systems Act to invalidate his appointment
is neither here
nor there.
[18]
Even if it were to be accepted that Jonas occupies the position of
Municipal Manager legitimately, there is still the matter
of the
specific instructions issued by Motala on 27 May 2013 to Phambane
Mokone Inc. Jonas in his supplementary replying affidavit
made no
attempts to address this instruction. It follows from this
instruction that no other person other than Motala, acting within
his
madate, could instruct attorneys in any pending or future matters
involving the first respondent.
[19]
It is apparent that Jonas refuses or fails to appreciate or accept
Motala’s executive authority in regards to many matters,
including the instruction of attorneys to handle litigation on behalf
of the first respondent. In the light of the above conclusions,
it
follows that any purported powers Jonas had exercised on behalf of
the first respondent, including the appointment of attorneys
Phambane
Mokone Inc as per his “Special Power of Attorney” equally
becomes invalid. To this end, it is concluded
that in opposing
this application, Jonas, duly assisted by Phambane Mokone Inc, was on
a frolic of his own.
Other
applications/affidavits:
[20]
A further application to strike out parts of Jonas’ answering
affidavit was made by the applicants. However, in the light
of the
pertinent issues to be determined by the court, this application was
not pursued with any vigour, and in any event, in the
light of the
above conclusions, that application became moot.
[21]
Also on the date of the hearing, Motala filed a
‘confirmatory/supplementary/opposing affidavit’. There
was vehement
opposition to the admission of this affidavit by Adv.
Ncongwana on behalf of Jonas and for obvious reasons. A ruling
was
then issued to exclude that affidavit. As that ruling was made on
record, it stands.
URGENCY:
[22]
Having disposed of the above issues, the only issue for determination
is whether this application should be treated as urgent.
In
considering this issue, it is accepted that Motala had the necessary
authority to conclude the settlement agreement which the
applicants
seek to make an order of court. This authority stems from the terms
of reference for the section 139 of the Constitution
interventions in
the first respondent
[5]
. In
terms of the letter confirming the appointment of the Administrator
addressed to the Speaker of the first respondent
[6]
,
the first respondent was
inter
alia
,
requested and advised to cooperate with the Administrator to be
appointed to execute all executive obligations and functions of
the
council. The Administrator was to be supported by a team of experts
to ensure the successful implementation of the intervention.
Pertinent to this application are the following provisions in the
terms of reference:
Maquassi
Hills LM (Entire Administration)
Manage
the overall adminstration.
Attend
to labour matters in the municipality [outstanding disciplinary
cases, labour disputes, functionality of LLF, instill
culture of work
and discipline of workers.]
(c
) LEGAL EXPERT:
To
provide legal advice on:
All
legal related matters of the municipality [litigations, court orders,
disciplinary cases etc].
Status
of disciplinary processes [number of cases, status of suspensions
etc].
[23]
It is further accepted that the court has the requisite jurisdiction
in terms of section 158 (1)(c) of the Labour Relations
Act to
determine the application before it. In this regard, the court is
empowered to make any settlement agreement an order of
this court. In
the alternative, the nature of dispute brought before the court is
determinable under the provisions of section
77 (3) and (4) of the
Basic Conditions of Employment Act.
[24]
The well-known legal requirements to be satisfied in order to succeed
in an urgent application are as follows: (a) the
applicant has
to either show a clear right or a
prima
facie
right in the case of interim relief; (b) a well-grounded apprehension
of irreparable harm if the relief is not granted on an urgent
basis,
(c) that the balance of convenience favours the granting of the
relief on an urgent basis; and (d) that the applicant has
no other
satisfactory relief
[7]
.
[25]
An applicant instituting an urgent application must justify the
necessity to circumvent the ordinary time periods set out in
the
rules of this Court. This much can be gleaned from Rule 8 of the
Rules of this Court which provides that:-
“
(2)
The affidavit in support of the application must also contain-
(a)
the reasons for urgency and why urgent
relief is necessary;
(b)
the reasons why the requirements of the
rules were not complied with, if that is the case ...”
[26]
Whether a matter is urgent involves two considerations. The first is
whether the reasons that makes the matter urgent, have
been set out
and secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. Thus, the applicant
must satisfy
the court that if the matter is not treated as one of urgency,
something drastic is likely to happen
[8]
.
Amongst the fundamental principles relating to urgency is that when
an application is brought on that basis, the institution of
the
proceedings should take place as soon as reasonably possible after
the cause thereof has arisen.
[27]
In this case, the settlement agreement was entered into on 17 March
2014, in terms of which they were to report for duty on
1 April 2014.
They were prevented by the second respondent from rendering their
services contrary to the provisions of the settlement
agreement on
that day. The following day on 2 April 2014 they approached their
attorneys of record in order to launch this application.
I am
satisified that the applicants acted in due haste in approaching the
court.
[28]
From the terms of the settlement agreement as stated elsewhere in
this judgment, it can be concluded that the parties always
intended
to resolve the dispute under J2009/12, and in the absence of a
contrary view held by Motala, I am satisfied that the intention
was
always to ensure that the terms of that agreement were complied with.
To the extent that the applicants were supposed to commence
their
duties on 1 April 2014, and only to be so prevented by Jonas who had
no authority to do so, it is accepted that the application
is indeed
urgent, taking into account that the applicants, by virtue of the
provisions of that agreement, are entitled to be gainfully
employed.
[29]
It is further accepted that applications of this nature ordinarily
join the litigation queue. However, Motala as part of his
mandate,
had intended to deal expeditiously with pending matters involving the
first respondent, and it is not for this court to
frustrate his
efforts in that regard. To have placed this application on the
ordinary roll when it was the intention of the parties
to
expeditiously resolve the dispute under J2009/12 would not make
any sense.
[30]
It is also accepted that the applicants may suffer irreparable harm
if they are not immediately placed in the first respondent
in terms
of the provisions of the settlement agreement, as these positions may
be filled. Furthermore, the applicants’ clear
right to the
remedy they seek arise from the provisions of the agreement itself.
The provisions of this agreement being valid and
sanctioned by a
person with executive powers, should thus be implemented with
immediate effect.
Costs:
[31]
Clause 7.2 of the settlement agreement provided;
‘
That
the party in default with reference to the terms of this agreement
obliging the aggrieved party to proceed with an application
as per
paragraph 7.1 herein above, will be liable for the costs of such an
application on a scale as between attorney and own client’
It
cannot be doubted that the first respondent, being duly represented
by Motala had always intended to comply with the provisions
of the
settlement agreement. Those endeavours were frustrated by Jonas, who
had no right or powers to do so, and who as already
indicated, was
acting on a frolic of his own.
[32]
This case represents a sorry saga that is not nearing an end, and
which involves the first respondent. This is apparent from
the
matters dealt with previously by the Honourable Acting Justices
Gaibie and Kumalo, and also by Steenkamp J. The latter had
even
commented that the litigation that the first respondent was involved
in, which involved Jonas
was mostly at the expense of the
ratepayers of Maquassi Hills. One would have hoped that the
cost orders made by Kumalo AJ
and Steenkamp J would have made Jonas
take stock and relent, but this was not to be. The settlement
agreement being valid, the
long-suffering ratepayers of Maquassi
Hills cannot be expected to pay legal costs that were in the first
place, incurred purportedly
on their behalf by an individual who is
on a crusade of his own.
[33]
Steenkamp J in a matter before him, commented that:
‘
This is a
case where the municipal manager’s conduct warrants a costs
order against him in his personal capacity on a punitive
scale.’
I
have no hesitation in coming to the same conclusion in this matter in
that there is clearly no justification for Jonas’
conduct of
frustrating the implementation of the provisions of the settlement
agreement validly entered into and sanctioned by
Motala. As that
agreement provided for liability for costs on a scale as between
attorney and own client, considerations of law
and fairness dictate
that such costs should be borne by Jonas.
ORDER:
a)
The settlement agreement dated 17 March
2014 is herein made an order of this Court.
b)
The second respondent, Jonas Itumeleng
Ronald is ordered in his personal capacity, to pay the costs of this
application, on a scale
as between attorney and own client.
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: Mr. WP Scholtz of Scholtz Attorneys
For the First and
Second Respondents: Adv. T Ncgwongane SC with
Adv. M Makgato
Instructed
by: Phambane Mokone Inc
[1]
Annexures
‘B1’; ‘B2’ and ‘B3’ to the
founding affidavit.
[2]
[at para 55]
[3]
[at para 55.1]
[4]
[at para 55.2]
[5]
Pages
125 – 131 of the common bundle.
[6]
Page
123 of common bundle
[7]
See
inter
alia
,
Jonker
v Wireless Payment Systems CC
(2010) 31 ILJ 381 and
LF
Boshoff Investment (Pty) Ltd v Cape Town Municipality
1969 (2) SA 256
(C) at 267 A-F. ; CB Prest, Law and Practice of
Interdicts, Juta 1996, page 57
[8]
Vermaak
v Taung Local Municipality
(JR315/13) [2013] ZALCJHB 43 (12 March 2013) at para 12.