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[2015] ZALCD 25
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Imbabazane Municipality v IMATU obo Gumbi and Others (D04/14) [2015] ZALCD 25; [2015] 8 BLLR 825 (LC); (2015) 36 ILJ 2297 (LC) (14 May 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Case No D04/14
DATE: 14 MAY 2015
Reportable
In the matter between:
IMBABAZANE
MUNICIPALITY
….....................................................................................
Applicant
And
IMATU obo N H GUMBI AND 25
OTHERS
............................................................
First
Respondent
I
BLOSE
....................................................................................................................
Second
Respondent
M
COWLING
.............................................................................................................
Third
Respondent
THE SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
......................................................................................
Fourth
Respondent
Heard: 20 January 2015
Delivered: 14 May 2015
Summary – Review of ruling and
subsequent arbitration award. Whether in terms of the principal of
legality, the employment
contracts concluded between the Applicant
and the First Respondent’s members were unlawful and if so,
whether they are nevertheless
enforceable through the application of
the principle of ostensible authority, because at the time of
conclusion of the contracts,
the person who signed as ‘Municipal
Manager’ no longer occupied that position. Whether the
Commissioners’ ruling
and award respectively, is reviewable in
that they misunderstood the law in regard to the principles of
legality and ostensible
authority. Commissioners’ decisions
found to be that of reasonable decision-makers
JUDGMENT
PATHER, AJ:-
Introduction:
[1] This is an application to review
and set aside:
1.1 the ruling issued by the Second
Respondent (“Commissioner Bulose”) ; and
1.2 the award of the Third Respondent
(“Commissioner Cowling”) as Commissioners of the Fourth
Respondent (“the
bargaining council”). Commissioner
Bulose’s ruling and Commissioner Cowling’s award are set
out in paragraphs
4 and 6 of this judgment.
[2] The application is opposed.
[3] It is common cause that:
3.1 The Applicant, the Imbabazane
Municipality had advertised vacancies which it required to fill.
3.2 The 26 members of the First
Respondent (“the employees”) responded to the
advertisements, were individually shortlisted,
interviewed, selected
and later issued with letters of appointment from the Applicant. The
letters of appointment incorporated
the individual contracts of
employment between the Applicant as employer on the one hand, and the
individual employees as employees
on the other. The employees
commenced employment with the Applicant on 1 June 2012.
3.3 Mr Ndlela who signed the employment
contracts on behalf of the Applicant, had been the Municipal Manager
since 3 November 2008.
His term of office expired on 17 May 2012 by
operation of law.
3.4 Despite the expiry of his term of
office, Mr Ndlela continued to occupy the position of Municipal
Manager, performed all the
duties as before and was remunerated for
his work. In terms of a High Court order issued on 21 December 2012,
Mr Ndlela’s
continued occupation of the position of Municipal
Manager beyond 17 May 2012 was declared null, void and invalid.
3.5 On 23 January 2013, Mr Madlala was
appointed as Ministerial Representative to administer the affairs of
the Applicant. Subsequently,
in terms of letters dated 2 April 2013,
Mr Madlala advised the employees individually that their appointments
had been unauthorised
and that they had to vacate their positions
with immediate effect and not to perform any further services.
[4] The employees then referred an
unfair dismissal dispute to the bargaining council. At the hearing
before Commissioner Bulose,
the Applicant raised a point in limine
that the bargaining council lacked jurisdiction to determine the
matter because the employment
contracts (“the contracts”)
were not lawful as the signatory on behalf of the Applicant, Mr
Ndlela, had had no authority
to conclude the contracts. On 1 July
2013, Commissioner Bulose dismissed the point and ruled that the
bargaining council had jurisdiction
to hear the matter. Evidently
Commissioner Bulose then gave notice that he would proceed with the
arbitration on the merits at
a later date, 1 August 2013.
[5] Prior to the proposed arbitration
hearing, in a related case, Imbabazane Municipality v Ligela Products
and 32 Others (unreported),
in the Kwazulu-Natal High Court,
Pietermaritzburg, before Seegobin J, Case Number 8522/13, the
Applicant sought a rule nisi, pending
a final determination, that,
among other relief, Commissioner Bulose be interdicted from
continuing with the arbitration involving
the employees as an interim
order with immediate effect. Seegobin J dismissed the application for
interim relief on 22 August 2013.
[6] Commissioner Bulose recused himself
from the arbitration hearing. Commissioner Cowling, who was
subsequently appointed as arbitrator
in the dispute, found that the
signatory on behalf of the Applicant had ostensible authority to
conclude the contracts with the
employees, that the employees were
employed by the Applicant and that the termination of their (‘the
employees’) contracts
constituted an unfair dismissal. He
ordered that the employees be reinstated.
[7] The grounds for review of
Commissioner Bulose’s ruling are that:
7.1 It having been submitted on behalf
of the Applicant that the bargaining council did not have
jurisdiction as the members of
the First Respondent were not
employees because no valid or lawful contracts had ever come into
existence, Commissioner Bulose
failed to answer this legal issue. It
was submitted in this regard that Commissioner Bulose did not provide
the basis for his finding
that the members of the First Respondent
were employees and that therefore the bargaining council had
jurisdiction.
7.2 Commissioner Bulose demonstrated a
lack of understanding of the legal importance of the case of City of
Tshwane Metropolitan
Council v RPM Bricks (Pty) Ltd
2008 (3) SA 1
SCA
by finding that rather than advancing the case of the Applicant, it
advanced the First Respondent’s case. In City of
Tshwane case
the court drew a distinction “between an act beyond or in
excess of the legal powers of a public authority (the
first
category), on the one hand, and the irregular or informal exercise of
power granted (the second category), on the other.”
The court
found that the question of whether the doctrine of estoppel applied
in that case would depend upon in which category
the conduct
complained of would be classed. In paragraph 12, the court stated as
follows:
‘In the second category, persons
contracting in good faith with a statutory body or its agents are not
bound, in the absence
of knowledge to the contrary, to enquire
whether the relevant internal arrangements or formalities have been
satisfied, but are
entitled to assume that all the necessary
arrangements or formalities have indeed been complied with. …
Such persons may
then rely on estoppel if the defence raised is that
the relevant internal arrangements or formalities were not complied
with’.
And in paragraph 13, the court stated as follows:
‘As to the first category:
failure by a statutory body to comply with provisions which the
legislature has prescribed for
the validity of a specified
transaction cannot be remedied by estoppel because that would give
validity to a transaction which
is unlawful and therefore ultra
vires’.
7.3 It was submitted that the facts of
this matter fell squarely within the first category, and not the
second category, for the
reason, inter alia, that the import of the
judgment issued on 21 December 2012 which led to the removal from
office of Mr Ndlela,
was that any decisions and/or actions taken by
him after 17 May 2012 were unlawful, invalid and null and void.
7.4 Commissioner Bulose’s finding
appears to be based on his reasoning that the Applicant should have
approached a court to
review and set aside the employment of the
employees. It was submitted that in this regard, Commissioner Bulose
failed to apply
his mind to the principles outlined in the case of
Municipal Manager: Qaukeni Local Municipality and Another v F V
General Trading
CC
2010 (1) SA 356
(SCA) at para 26, where the court
stated as follows:
‘…If the second
respondent’s procurement of municipal services through its
contract with the respondent was unlawful,
it is invalid and this is
a case in which the appellants were duty-bound not to submit to an
unlawful contract, but to oppose the
respondent’s attempt to
enforce it. This it did by way of its opposition to the main
application and by seeking a declaration
of unlawfulness in the
counter-application. In doing so, it raised the question of the
legality of the contract fairly and squarely,
just as it would have
done in a formal review. In these circumstances, substance must
triumph over form. And while my observations
should not be construed
as a finding that a review of the award of the contract to the
respondent could not have been brought by
an interested party, the
appellant’s failure to bring formal review proceedings under
PAJA is no reason to deny them relief’.
7.5 It was submitted that on the
material before him, Commissioner Bulose should have found that there
was no “dismissal”
as the members of the First Respondent
were not employees, because their contracts were void ab initio.
Furthermore, he should
have found that the termination of the
contracts was a rectification of the illegality that had been
perpetrated in the conclusion
of the contracts and that by law, the
Applicant was duty-bound to do so. Commissioner Bulose should then
have found that the bargaining
council did not have the jurisdiction
to entertain the dispute referred by the First Respondent.
[8] The grounds for the review of
Commissioner Cowling’s award are:
8.1 He too failed to apply the
principles stated in the City of Tshwane case by incorrectly finding
that the circumstances of this
matter fell under the second category,
when the only reasonable conclusion should have been that they fell
under the first category.
8.2 Commissioner Cowling’s
finding seems to have been based on the concepts of fairness and
prejudice, when there is authority
that in these matters, the
principle of legality and not fairness or prejudice applies. In this
regard, the following extract from
the case of City of Tshwane
referred to above, is relevant:
‘Estoppel cannot, as I have
already stated, be used in such a way as to give effect to what is
not permitted or recognised
by law. Invalidity must therefore follow
uniformly as a consequence. That consequence cannot vary from case to
case. ‘Such
transactions are either all invalid or all valid.
Their validity cannot depend upon whether or not harshness is
discernible in
a particular case.’ (per Marais JA in Eastern
Cape Provincial Government v Contractprops 25 (Pty) Ltd
2001 (4) SA
142
(SCA) para 9)’.
8.3 Commissioner Cowling unreasonably
visited Mr Ndlela with ostensible authority, and therefore found that
the Applicant was estopped
from relying on his lack of authority.
Commissioner Cowling made this finding despite evidence having been
placed before him that
Mr Ndlela was aware at the time the contracts
were concluded, that his own contract with the Applicant had
terminated. By applying
the principle of estoppel, Commissioner
Cowling had failed to apply his mind to the principle outlined in the
City of Tshwane case,
where at paragraph 16, the court stated:
‘It is settled law that a state
of affairs prohibited by law in the public interest cannot be
perpetuated by reliance upon
the doctrine of estoppel…, for to
do so would be to compel the defendant to do something that the
statute does not allow
it to do. In effect therefore, it would be
compelled to commit an illegality’.
8.4 Commissioner Cowling also relied on
the fact that the Applicant had not established that the employees
were aware or should
have been aware that Mr Ndlela was no longer
lawfully employed by the Applicant. In this regard, it was submitted
that he committed
an irregularity in that he had read the City of
Tshwane case, particularly where the court stated the following at
paragraph 18:
‘The fact that the plaintiff was
misled into believing that the defendant’s employees were
authorised to vary an agreement
that had earlier been lawfully
concluded with it, can hardly operate to deprive the defendant of
that power which had been bestowed
upon it by the legislature. To do
so would be to deprive the ultra vires doctrine of any meaningful
effect’.
8.5 Commissioner Cowling incorrectly
found that he had no power to make his own finding regarding the
issue of jurisdiction, because
it had already been made by
Commissioner Bulose. And as he, Commissioner Bulose had subsequently
withdrawn from the matter, it
was Commissioner Cowling’s legal
duty to satisfy himself that he did in fact and in law have the
jurisdiction to hear the
matter.
8.6 Commissioner Cowling acted
unreasonably by ordering the Applicant to reinstate the employees
despite the Applicant’s contention
that it was practically
impossible for it to give effect to such an order, since the posts
which the employees previously occupied
had been abolished pursuant
to a restructuring exercise.
8.7 Commissioner Cowling committed a
gross irregularity by issuing an award without having first
established the precise identity
of the employees who were before
him. In his award, he alluded to the fact that he was in possession
of varying lists of the employees.
Furthermore, at the commencement
of the arbitration hearing he raised the issue as appears on page 1
of the transcript. Notwithstanding
his appreciation of the importance
of determining the exact identities of the employees before him, he
proceeded to issue the award
on the understanding that the parties
would agree between themselves on the employees’ identities. It
was submitted that
in so doing Commissioner Cowling committed a gross
irregularity because he unreasonably assumed that there would be
agreement between
the parties whereas as it turned out, the list
and/or identities of the employees had never been agreed upon between
the parties.
[9] Mr Zondi on behalf of the applicant
submitted that if the court were to find that the Applicant had acted
unlawfully in terminating
the contracts, the appropriate order would
be compensation. In this regard, he argued that section 193 of the
Labour Relations
Act (the Act) determines instances where
reinstatement would not be appropriate. Commissioner Cowling ought to
have considered
the different scenarios provided in the Act argued Mr
Zondi. In the circumstances, the Applicant sought a substitution of
compensation
for Commissioner Cowling’s order that the
employees be reinstated.
[10] As there had not been strict
compliance with the Court’s Directives in terms of the filing
of Heads of Argument, those
filed by the First Respondent, while
capturing the essence of its case, does not directly address each
ground of review submitted
by the Applicant, as the First
Respondent’s Heads were filed first. This shortfall was
however, rectified during argument.
[11] The First Respondent submitted
that:
11.1 After considering the facts and
section 213 of the Act, Commissioner Bulose ruled that the 26 members
of the First Respondent
were in fact employees of the Applicant.
11.2 Although not tasked with deciding
whether the 26 members of the First Respondent were employees of the
Applicant, Seegobin
J, in Imbabazane Municipality at paragraph 15
considers this and concluded that the 26 employees were in fact
lawful employees.
11.3 Mr Ndlela, the Municipal Manager
at the time and who had signed the contracts had all the trappings of
authority. He was being
held out as the Municipal Manager by the
Applicant and carried out the functions of that office on a day to
day basis. It was submitted
that he obviously had ostensible
authority to do so when he signed each of the employees’
contracts. Even if he was not in
law authorised to sign the contracts
when he did, at the very least he had ostensible authority upon which
innocent persons such
as the employees relied and which bound the
Applicant on the basis of the principle of estoppel.
11.4 It is the Municipality and not the
Municipal Manager that gave effect to the contracts by utilising the
services of the employees.
The Municipality remunerated them and
treated them as its employees.
11.5 It was unfair of the Applicant to
have simply notified the employees that they were no longer
employees.
11.6 The Municipal Manager had signed
the employees’ contracts on the culmination of a process that
had been followed and
that had led to the Applicant’s
appointing them.
11.7 The validity or otherwise of the
contracts are not dependent on the lawful appointment of the
Municipal Manager who signed
the letters of appointment. The fact
that at some time in the future a defect in his appointment emerges
does not invalidate the
contract retrospectively or mean that there
was never a contract or that the employees were not employees as
defined in the Act.
11.8 What the Applicant is asking of
the court is not merely to set aside the contracts but the entire
process which culminated
in the appointments and the signing of the
contracts. The Applicant has not however, made out a case for so
doing.
11.9 Mr Geldenhuys argued further that
if the court finds that the dismissal of the employees was unfair,
the only remedy applicable
is reinstatement.
11.10 In regard to the list of
employees, this is in the documents and was available at the
arbitration before Commissioner Cowling.
The employees are as cited
as being represented by IMATU, the First Respondent, namely N H Gumbi
and 25 Others. Therefore, they
are 26 in all.
11.11 The Constitution guarantees
everyone the right to fair labour practices. Therefore, the conduct
of the then former Municipal
Manager cannot simply be set aside, as
the process of advertisement, recruitment and selection had been
conducted while he was
legitimately in office. The letters of
appointment simply state ‘I confirm your appointment…’.
11.12 No proper procedure had been
followed in regard to a dismissal of the employees by the Applicant,
namely the Imbabazane Municipality.
11.13 The judgment of Henriques J in
the case of The Member of the Executive Council for Co-Operative
Governance and Traditional
Affairs v Imbabazane Municipality and 14
Others under case Number 5238/12 (unreported) in the Kwazulu-Natal
High Court, Pietermaritzburg,
wherein it was held that the continued
occupation by Mr Ndlela of the office of Municipal Manager was null
and void, was delivered
on 21 December 2012. The letters of
termination of their contracts were only sent to the employees on 2
April 2013. In this regard
argued Mr Geldenhuys, it was alarming that
the Applicant had done nothing between the date of the judgment in
which Mr Ndlela’s
continued occupation of the position of
Municipal Manager was declared unlawful and the date when the
employees received the letters
of termination of their contracts.
11.15 Finally, Mr Geldenhuys submitted
that if the MEC for Co-Operative Governance and Traditional Affairs
had acted swiftly to
remove Mr Ndlela (on expiry of his contract),
the acting Municipal Manager or even the new Municipal Manager would
have signed
the employees’ contracts of employment.
[12] Mr Zondi for the Applicant
countered as follows:
12.1 The fact that there had been no
publication of the status of the Municipal Manager after 17 May 2012
did not assist the First
Respondent because it was wrongly relying on
the principle of ostensible authority.
12.2 He cited again the case of Qaukeni
Local Municipality where at paragraph 23, the SCA remarked:
‘There is no doubt that the MEC
was not only entitled but also duty-bound to approach a Court to set
aside her own irregular
administrative act’.
Evaluation:
[13] Once Henriques J in The Member of
the Executive Council for Co-Operative Governance and Traditional
Affairs, referred to above,
ordered that the continued employment of
Mr Ndlela as Municipal Manager beyond 17 May 2012 was null, void and
invalid, all administrative
actions carried out by him as ‘Municipal
Manager’ beyond that date would therefore have been unlawful.
His contract
of employment had terminated by operation of law and he
no longer had the authority of the office of Municipal Manager. In
Pharmaceutical
Manufacturers Association of South Africa and Another:
In re Ex Parte President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA
674
CC, it was held that no person exercising a public power may
exercise such a power unless it is conferred on him by law.
[14] It follows therefore, that he no
longer have the authority of Municipal Manager, when he signed the
contracts of employment
with the employees between 18 May 2012, after
his own contract had terminated and 4 June 2012 when he had been
advised of this
fact, Mr Ndlela’s actions were unlawful.
Considering the amount of public funds at stake in cases where
officials act ‘beyond
or in excess of the legal powers of a
public authority’ (City of Tshwane Metropolitan Municipality v
RPM Bricks (Pty) Ltd
[2007] SCA 28 (RSA), the importance of the
principle of legality is understandable.
[15] Mr Geldenhuys referred to the case
of Khumalo and Another v MEC for Education: Kwa-ZuluNatal
[2012] 12
BLLR 1232
(LAC) where at paragraph 42, Zondi AJA said
‘But the fact that an
administrative act is unlawful does not necessarily follow that it
has to be set aside. In reviewing
and considering whether to set
aside an administrative action, Courts are imbued with a discretion
and may in the exercise thereof
refuse to order the setting aside of
an administrative action, notwithstanding substantive grounds being
present for doing so (Oudekraal
Estates (Pty) Ltd v City of Cape Town
and Others
2010 (1) SA 333
(SCA) at paragraph 33) (Oudekraal
2).Sections 172 (1) (b) of the Constitution and 8 of PAJA are
statutory provisions providing
the source of the Courts’
discretion. In terms of section 172 (1) (b) of the Constitution a
Court, when deciding a constitutional
matter within its powers, may
make an order that is just and equitable, including an order
suspending the declaration of invalidity
for any period. Similarly,
under section 8 (1) of PAJA the Court in proceedings for judicial
review in terms of section 6 (1),
may grant any order that is just
and equitable (Bengwenyama Minerals (Pty) Ltd and Others v Genorah
Resources (Pty) Ltd and Others
2011 (4) SA 113
(CC) at para 82;
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 (6)
SA 222
(SCA) (Oudekraal 1); Chairperson, Standing Tender Committee
and Others v JFE Sapela Electronics (Pty) Ltd and Others
2008 (2) SA
638
(SCA) at para 28)’.
[16] Notwithstanding Mr Ndlela’s
lack of authority to sign the contracts/letters of appointment on
behalf of the Applicant
at the time he had done so, the position of
the employees, were it to be ordered that the unlawful administrative
action be set
aside, would be untenable. Apart from their rights to
fair labour practice, the employees had been appointed to the various
positions
after a legitimate process involving applications for
advertised positions, shortlisting of potential recruits and
selection. After
being appointed as employees, they commenced working
for the Applicant, some of them as early as after 17 May 2012, and
were paid
for their work. All the while, Mr Ndlela continued to
perform the functions of a Municipal Manager, reported for duties as
usual
it would seem and was paid for his work beyond the expiry date
of his contract. For all intents and purposes, it was business as
usual at the Imbabazane Municipality, focusing as it ought to have
been, on the delivery of services to residents within its area
of
jurisdiction.
[17] That the employees were suddenly
notified on 2 April 2013 that their contracts of employment were
terminated can on the face
of it immediately be considered a
violation of their right not to be unfairly dismissed. They had been
working for the Applicant
for at least six months – reporting
for work and performing their individual duties in terms of their
respective contracts
of employment. In terms of section 186 (1) (a),
“dismissal” means that an employer has terminated a
contract of employment
with or without notice. It is common cause
that no notice was given to the employees, it being argued on behalf
of the Applicant
that it merely sought to reverse the wrongdoing
caused by Mr Ndlela’s signing of the contracts when he had no
authority to
have done so.
[18] Section 188 (1) of the Amended LRA
provides as follows:
‘A dismissal that is not
automatically unfair, is unfair if the employer fails to prove-
(a) that the reason for dismissal is a
fair reason-
(i) related to the employee’s
conduct or capacity; or
(ii) based on the employer’s
operational requirements; and
(b) that the dismissal was effected in
accordance with a fair procedure’.
[19] The dismissal of the employees was
unfair as it was not related to their conduct or capacity, nor was it
based on the Applicant’s
operational requirements and, no
procedure had been followed, let alone a fair procedure. The
Applicant had sought to correct what
it termed, a ‘wrongdoing’
and in so doing, violated every principle of an employee’s
right to fair labour practice
and the right not to be unfairly
dismissed.
[20] The comprehensive and
well-reasoned Ruling of Commissioner Bulose and Award of Commissioner
Cowling, indicates that it was
precisely this unfairness of the
dismissal of the employees that had formed the bases of their
respective decisions. While they
may not have had sight of the more
recent case of Khumalo, both Commissioner Bulose and Commissioner
Cowling were clear that undue
prejudice would befall the employees if
the unfair dismissal were to be superseded by the administrative
action found to be unlawful.
Furthermore, I agree to an extent with
Commissioner Bulose that the case of City of Tshwane is not entirely
applicable. Unlike
the plaintiff in City of Tshwane, whose rights
flowed from a contract for the provision of services, the employees
in casu derived
their rights from legislation, especially the
Constitution which guarantees the right to fair labour practices. As
Commissioner
Cowling pointed out, if the principle of legality were
to result in the setting aside of the employment contracts, the
Applicant
would be entitled to reclaim the salaries paid to the
employees, which would be grossly unfair, as was their summary
dismissal.
In my view, this is a case in which the interests of
justice demand that the declaration of invalidity of Mr Ndlela’s
actions
in signing the employees’ contract, be suspended
pending the proper resolution of their continued employment in terms
of
the LRA.
[21] In the case of Khumalo, Zondi AJA,
stated:
‘[52] The mere fact that the
impugned decision is based on ignorance, mistake or fraud does not
necessarily mean that it has
to be set aside. In appropriate
circumstances a Court will decline, in the exercise of its
discretion, to set aside an invalid
administrative action in order to
avoid or minimise injustice when legality and certainty collide. …
.
[53] While it may be true that the
review is aimed at setting aside an invalid act on the basis that it
fails to satisfy the principle
of legality, sometimes practical
considerations would require finality, rendering it less desirable to
set aside an invalid act.
That would be a case where an invalid
administrative act has over a period of time remained unchallenged
and the parties have arranged
their affairs in accordance therewith
and its setting aside may cause them injustice.…’
[22] In this regard, Commissioner
Cowling referring to the employees, postulates, on page 9 of the
Award, that:
‘Thus, employment contracts are
formed through the employee performing work for the employer and this
is precisely what the
Applicants have done. At the time of their
alleged dismissal they had all performed at least six months service
for the Respondent
for which they had been remunerated. They were
entitled to assume that they had been permanently employed and could
plan their
futures in this regard. Many of them had resigned from
other jobs in order to take up the offer of employment given to them
by
the Respondent’.(sic)
[23] Mr Ndlela’s invalid
administrative act had remained unchallenged for approximately six
months. Then, after being sent
letters on 2 April 2013 to the effect
that their employment contracts were terminated, the employees
attempted to enforce their
rights by referring a dispute about the
unfair dismissal to the bargaining council. The proceedings involving
the parties and others,
the latter who had an interest in the High
Court litigation, have been protracted. It would be in the interests
of justice that
finality is reached in the matter. In my view, the
decisions made by Commissioner Bulose and Commissioner Cowling
respectively,
being just and equitable against the background of the
employees’ right not to be unfairly dismissed, are those which
a reasonable
decision-maker would have reached.
[24] In weighing the prejudice to be
caused to the parties, it is clear that the employees, who have
already suffered financial
prejudice as a result of being summarily
dismissed, will continue to suffer financial prejudice through no
fault of their own.
[24] I agree with Mr Geldenhuys’
submission that there is no suggestion that the employees would not
have been appointed by
either the acting Municipal Manager or the new
one. The Applicant required to fill the positions and accordingly
embarked on a
process of advertising and recruitment at a time when
Mr Ndlela lawfully occupied the post of Municipal Manager. Mr Zondi
submitted
that the Applicant had undergone a restructuring exercise
and that reinstatement was not appropriate. However, as the unfair
dismissal
of the employees preceded the restructuring, if in fact
this has been finalised, and as Commissioner Cowling had ordered
reinstatement,
the remedy must be reinstatement as this is what the
employees had sought.
[25] Mr Zondi’s argument that the
employees had not been properly identified cannot be sustained. The
reason is that the First
Respondent, being the Applicant before
Commissioner Bulose first and subsequently before Commissioner
Cowling was always cited
as it appears in this case, namely IMATU on
behalf of N H Gumbi and 25 Others. According to the transcript of the
proceedings before
Commissioner Cowling, neither party objected to
reaching consensus on the exact number and identities of the members,
being the
employees. In this regard and without a doubt I find that
the Applicant is estopped from raising the lack of definite
identification
of the employees as a bar to the finalisation of the
review.
[25] As regards the issue of costs, the
general rule is that costs follow the event. There is no reason to
depart from this rule
– the successful litigant, namely the
First Respondent is entitled to the costs incurred in defending the
application.
Order
[26] For these reasons, I make the
following order:
26.1 The application for review is
dismissed.
26.2 The Applicant is ordered to pay
the costs.
S Pather
Acting Judge of the Labour Court of
South Africa
APPEARANCES
For the Applicant: Mr S C Zondi
Instructed by: Mdledle Incorporated
For the First Respondent: Mr E
Geldenhuy Tomlinson Mnguni James
Third Respondent’s
Representative: Ms Geldenhuys (IMATU)