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[2015] ZALCJHB 80
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Mkhombo v SAMWU; In re: SAMWU v MEC for COGHSTA and Others (J2740/14) [2015] ZALCJHB 80 (4 February 2015)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE
NO
: J2740/14
DATE
:
04 FEBRUARY 2015
In the matter between
O Z
MKHOMBO
......................................................................................................................
Applicant
And
SAMWU
..................................................................................................................................
Respondent
In re:
SAMWU
.....................................................................................................................................
Applicant
And
MEC for
COGHSTA
.....................................................................................................
First
respondent
GREATER TZANEEN
MUNICIPALITY
...............................................................
Second
respondent
OZ
MKHOMBO
..........................................................................................................
Third
respondent
JUDGMENT
STEENKAMP
J
:
The applicant
in this matter, Mr O Z Mkhombo, seeks to rescind an order granted by
my brother, Mr Acting Justice Thlothalemaje,
on the 18
th
of November 2014.
In
that order he interdicted the third respondent (in the main dispute),
Mr Mkhombo, from continuing to act in the position of municipal
manager of the Greater Tzaneen Municipality (the second respondent in
the main application). He also declared that the municipality’s
decision to appoint Mkhombo as an acting municipal manager, or
allowing him to act as municipal manager for a period longer than
that which is prescribed by section 54A of the Local Government:
Municipal Systems Act
[1]
,
is null and void and is set aside. The MEC for COGHSTA was cited as
the first respondent in that application.
The
employee, Mr Mkhombo, seeks to have that order rescinded. In the
application for rescission he cited only SAMWU as respondent.
He did
not cite either the MEC or the municipality. As a result, the union
raises a first point
in limine,
and that is one of non-joinder or misjoinder. It points out that the
order contains specific relief against the municipality. It
is the
municipality that appoints the acting municipal manager and it is the
decision of the municipality to extend Mkhombo’s
acting
appointment that has been declared null and void by this Court.
Clearly the municipality has a direct and substantial interest
in
these proceedings and should have been joined.
Furthermore,
the municipality appointed another person, Ms Norah Lion, as acting
municipal manager for a period of three months,
starting on the 1
st
of December 2014. She is therefore the current incumbent and also has
a direct and substantial interest in this application. The
applicant’s failure to join either the municipality or Ms Lion
as parties is in itself fatal to the application.
There is a
second point
in
limine,
and that is Mr Mkhombo’s
lack of authority. He says in his founding affidavit that he purports
to bring the application both
in his personal capacity and in his
capacity as acting municipal manager, following both the court order
and the decision of the
municipality to declare his appointment null
and void. He is of course no longer the acting municipal manager. For
that reason
also the application should be dismissed as he does not
have
locus standi
to bring the application in that capacity.
Thirdly,
as Mr
Venter
pointed out, the relief sought at this stage is academic and
impractical. It is trite that the court will not grant orders that
have no direct effect. In this regard, the facts before me are that
the municipality adopted the following resolutions on 1 December
2014: Firstly, to appoint Ms Lion as acting municipal manager for a
period of three months, i.e. until the end of February 2015;
secondly, to rescind the appointment of Mr Mkhombo as acting
municipal manager; and thirdly, and in any event, Mr Mkhombo has
already acted as municipal manager for a period of more than six
months. I agree with Mr
Venter
that on a clear reading of section 54A(2)(a) and (b) of the Systems
Act, that is not admissible.
In any
event, Mr Mkhombo’s last appointment as acting municipal
manager, commencing in October 2014, would already have expired
at
the end of December 2014. For that reason also, the relief sought
cannot be granted.
Even if
I were not inclined to uphold these points in
limine
I am not satisfied that the applicant has made out a case to show
good cause in terms of rule 16A(1)(b) to have the order rescinded.
[2]
I will
accept, even though I have some misgivings, that it may be that the
person who accepted service of the application that was
heard by
Molahlehi J, that is Christelle van der Merwe, may not have given it
to Mr Mkhombo directly. Instead, she reported it
to the labour
relations officer, Mr Malale, who simply told her that the document
is lost. Malale does not explain to the court
how he even knew what
that document was and what the circumstances are leading to its loss,
nor what efforts anyone at the municipality
took to make sure that it
did come to the attention of Mr Mkhombo.
However,
there is a second leg to the requirement for good cause, and that is
a
bona fide
defence. I do not agree with Ms
Williams
that the applicant, Mr Mkhombo, has set out a
bona
fide
defence. On my reading of section
54A(2)(b) of the Systems Act it is clear that the legislator
contemplated an initial acting appointment
of three months, and as
the subsection clearly states that:
“
A municipal council may, in special
circumstances and on good cause shown, apply in writing to the MEC
for local government to extend…”
and I stress:
“…
the period of appointment
contemplated, for
a further period
that does not exceed three months.”
The period of
appointment contemplated is clearly the initial period of three
months. The Act then envisages that that period of
appointment may be
extended for a further period that does not exceed three months. It
does not provide for further periods. For
that reason also the
application would have failed even had I not upheld the points
in
limine
.
With
regard to costs, I take into account that the applicant brought the
union to court on an urgent basis on the 5
th
of December in circumstances where it did not have prospects of
success. In any event, both parties asked for costs to follow the
result. I therefore make the following order:
ORDER
1. The
application for rescission is dismissed.
2. The applicant (Mr Mkhombo) is ordered to pay the costs of
the respondent (that is SAMWU), including the costs of 5 December
2014.
- - - - - - -
- - - - - - -
ON BEHALF OF
APPLICANT: ADV WILLIAMS
ON
BEHALF OF RESPONDENT: ADV VENTER
CERTIFICATE
OF VERACITY
I, the
undersigned, hereby certify that,
in as far as it is audible
,
the aforegoing is a
VERBATIM
transcription of the
proceedings as was ordered to be transcribed by iAfrica
Transcriptions and which had been recorded by
Digital Court Recording
Services by means of a digital recorder in the matter of:
SAMWU on behalf of MEMBERS
v
GREATER TZANEEN MUNICIPALITY
CASE
NO
:
JR2740/14
RECORDED
AT
:
Court
:
Labour Court
Court Nr
:
1
Stenographer
:
..............
DATE
OF HEARING
:
2015-02-04
ORDER
TO TRANSCRIBE
:
Judgment
RECEIVED
BY TRANSCRIBER ON
:
2015-02-27
COMPLETED
BY TRANSCRIBER ON
:
2015-03-03
TRANSCRIBER
:
Ms M Brits
NO
OF CD’s
:
1 (One)
NUMBER
OF PAGES
:
5
PLEASE
NOTE
:
The following problems were encountered during transcription of the
audio record:
-
None
[1]
Act 32 of 2000.
[2]
Lumka & associates v Maqubela
(2004) 25
ILJ
2326
(LAC) par 21-23;
Superb Meat Supplies cc v Maritz
(2004) 25
ILJ
96
(LAC) par 19-22.