About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2016
>>
[2016] ZALCPE 27
|
|
Jako-Wutu v Ntabankulu Local Municipality and Another (P332/14) [2016] ZALCPE 27 (16 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
case No: P332/14
Reportable
In
the matter between:
THOZAMA
JAKO-WUTU
First
Applicant
and
NTABANKULU
LOCAL MUNICIPALITY
First
Respondent
THE
MUNICIPAL MANAGER: NTABANKULU LOCAL MUNCIPALITY
Second
Respondent
Heard
:
10 February 2016
Delivered
:
16 February 2016
Summary:
(Review s 157(2)(b) - illegality of institution of disciplinary
proceedings of municipal senior manager
– proceedings and
dismissal set aside)
JUDGMENT
LAGRANGE
J
Introduction
[1]
In this application, the applicant a former Chief Financial Officer
of the first respondent
(‘the Municipality’) seeks to
review and set aside her dismissal on 31 August 2015 on the basis of
the principle of
legality. In pursuit of this aim, she seeks to set
aside a number of preceding decisions of the municipality concerning
the decision
to institute disciplinary proceedings, the appointment
of an independent investigator and the presiding officer and the
presiding
officer’s recommendation that she be dismissed as
well as the municipality’s decision to do so on the grounds
that
they were all unlawful.
[2]
The municipality opposes the application and also has brought a
counter motion to review
and set aside its own decision on 31 August
2015 granting the applicant leave to appeal against its own decision
to dismiss her.
It also has applied to strike out paragraph 40 of the
applicant’s founding affidavit in which she deals with her
personal
circumstances. Although the respondent did not pursue this
latter relief, I would agree that those averments were not relevant
in these proceedings.
The key issues
[3]
The crux of the applicant’s case rests on her claim that a
number of decisions of
the municipality relating to the disciplinary
proceedings against her, were taken in breach of section 160 (3) (c)
of the Constitution
and the parallel provisions of section 30 (3) of
the Local Government: Municipal Structures Act,111 of 1998. The
constitutional
provision states that “all questions before a
municipal Council decided by a majority of the votes cast”, and
section
30 (3) states that “All other questions for a municipal
Council decided by a majority of the votes cast…”
[4]
The
relevant provision of the Systems Act regulations
[1]
state that:
'Policy
4 (1) If a senior manager
is alleged to have committed misconduct, the municipal council must
institute disciplinary proceedings
in accordance with this
Disciplinary Code....
Disciplinary procedures
5(1) Any allegation of
misconduct against a senior manager must be brought to the attention
of the municipal council.
(2) An allegation
referred to in subregulation (1) must be tabled by the mayor or the
municipal manager, as the case may be, before
the municipal council
not later than seven days after receipt thereof, failing which the
mayor may request the speaker to convene
a special council meeting
within seven days to consider the said report.
(3) If the municipal
council is satisfied that -
(a) there
is reasonable cause to believe that an act of misconduct has been
committed by the senior
manager,
the
municipal council must within seven days appoint an independent
investigator to investigate the allegation[s] of misconduct
;
and
(b) there
is no evidence to support the allegation[s] of misconduct against the
senior manager, the
municipal council must within seven days dismiss
the allegation[s] of misconduct.
(4) The investigator
appointed in terms of subregulation (3)(a) must, within a period of
30 days of his or her appointment, submit
a report with
recommendations to the mayor or municipal manager, as the case may
be.
(5) The report
contemplated in subregulation (4) must be tabled before the municipal
council in the manner and within that timeframe
as set out in
subregulation (2).
(6) After having
considered the report referred to in subregulation (4), the
municipal
council must by way of a resolution
institute disciplinary
proceedings against the senior manager.
(7) The resolution in
subregulation (6)
must
-
(a)
include
a determination as to whether the alleged misconduct is of a serious
or a less serious nature;
(b)
authorise
the mayor, in the case of the municipal
manager,
or municipal manager, in the
case of the manager, directly accountable to the municipal manager to
-
(i) appoint
-
(aa) an
independent and external
presiding
officer
; and
(bb)
an
officer to lead evidence
; and
(ii) sign
letters of appointment.
…
Sanctions
12.
(1)
The presiding officer may impose
any
, or a combination of the following
sanctions
,
with or without conditions:
(a) suspension
without pay for no longer than three months;
(b) demotion;
(c) transfer
to another post;
(d) reduction
in salary, allowances or other benefits;
(e) an
appropriate fine; or
(f)
dismissal
.”
(emphasis
added)
[5]
The applicant claims that the following decisions of the municipality
were taken without
being voted upon:
5.1
the appointment of an independent investigator on 3 October 2014 to
investigate allegations of
misconduct against the applicant;
5.2
the decision to subject the applicant to disciplinary proceedings
taken at the Council meeting
of 31 to 2014 and the decision
authorising the municipal manager to appoint a presiding officer
taken on the same day.
[6]
The applicant further contends that in the absence of a resolution
authorising the appointment
of the fourth respondent as evidence
leader, the fourth respondent was not authorised to prepare the
charges against her. In this
instance, the applicant points out that
there was not even a purported resolution appointing the fourth
respondent in that capacity.
In argument, applicant’s counsel
Mr Zilwa SC,
assisted by
Mr N R Mtshabe,
rightly
conceded that the appointment of the evidence leader was not a matter
which caused the applicant any substantial prejudice
on the facts of
this matter, so this relief was not pursued.
[7]
When the disciplinary proceedings commenced in January 2015, the
respondents were warned
that the proceedings had no legal validity
and were susceptible to being set aside for want of compliance with
“relevant
statutes”. As a result, the applicant raised
her objections in the disciplinary enquiry and the employer responded
to them
in great detail. On 23 January 2015, the chairperson of the
enquiry concluded that the Council had complied with the
Constitution,
the Municipal Structures Act and the Regulations
Dealing with the Discipline of Senior Managers and directed that the
enquiry could
proceed.
[8]
It is important at this juncture to note that in her representations
to the chairperson,
the applicant pertinently raised the complaint
that no voting on the various resolutions culminating in the
institution of the
disciplinary proceedings against her had taken
place in the municipal council and she argued that this was contrary
to the requirements
of section 30(3) of the Structures Act and
section 160(3)(c) of the Constitution. Equally important is that, in
the municipality’s
answering, and carefully considered
submissions opposing the application, it proceeded on the basis that
it was common cause that
voting had not taken place, but that the
resolutions recorded in the minutes of the Council meetings were
nonetheless valid resolutions.
The following passages from the
municipality’s representations are noteworthy:
“
7.
The crux of the employee’s challenge relates to an alleged
requirement that the majority of members’ municipal council
be
present for a boat be taken on any matter. In essence the employee
contends that since the resolutions outlined … were
not
subject to a vote, that such resolutions are null and void and of no
force and effect.
…
10.
In this regard it is submitted that the municipal manager will
confirm through oral evidence that the practice adopted when
adopting
resolutions do not require a voting process each and every
decision….”
The
municipality had argued before the arbitrator that on a proper
interpretation of section 160 (3) of the Constitution and of
section
30 (3) of the Structures Act, the word ‘questions’ in
both those provisions was intended only to refer to important
key
decisions or ones of principle and not to operational issues. Since
the institution of disciplinary proceedings was an operational
matter
the voting requirements of those provisions did not apply to the
resolutions in question. It must be noted that this argument
was not
one that was raised by the municipality in these proceedings.
[9]
In consequence of the presiding officer not being properly appointed,
the applicant contests
the validity of any findings he made and his
recommendations that she be dismissed. She also challenges the
Council’s decision
to adopt the chairperson’s
recommendations to dismiss her.
[10]
The respondent raises a number of defences to the review, which may
be stated summarily under the following
headings:
10.1
The applicant should be non-suited because she unduly delayed
launching these proceedings by waiting until she
had been dismissed.
10.2
The applicant should have pursued a remedy for unfair dismissal
instead of launching these proceedings.
10.3
Because the relief sought was declaratory in nature the court in the
exercise of its discretion should decline
to grant the relief,
because the matter was now moot.
10.4
There was a factual dispute about whether or not the imputed
resolutions had been voted upon or not and on the
Plascon-Evans
principle the dispute should be decided in the respondent’s
favour.
10.5
The applicant failed to review the
in limine
ruling of the
disciplinary enquiry chairperson on the issues which are the subject
matter of this review.
10.6
The applicant’s reliance on the principle of legality was
fundamentally misconceived because the legal effect
of her dismissal
is undiminished by any challenge to the antecedent decisions leading
to her dismissal.
[11]
These arguments are addressed below in dealing with the merits of the
application.
Evaluation
The Nature of the Review
Application
[12]
Section 157(2)(b) of the labour relations act 66 of 1995 (‘the
LRA’) states:
“
The
Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from-
(a)
…
(b)
any dispute over the constitutionality of any executive or
administrative act or conduct
, or any threatened executive or
administrative act or conduct,
by the State in its capacity as an
employer
; …”
Clearly,
the decision to institute disciplinary proceedings against the
applicant and to dismiss her is action by the local authority
as an
organ of state acting in its capacity as an employer, and falls
within the purview of the court’s powers under this
section.
The proceedings are in the nature of the review proceedings based not
on challenging the reasoning of the municipality
taking disciplinary
action, but aimed at challenging the very foundation of its legal
authority to have done so, constituting a
review based on the
legality of its actions.
[13]
The principle of legality was succinctly expressed by Ngcobo J, as he
then was, in the Constitutional Court
judgement in
Affordable
Medicines Trust and others v Minister of Health and others
as follows:
“
[49]
The exercise of public power must therefore comply with the
Constitution, which is the supreme law, and the doctrine of legality,
which is part of that law. The doctrine of legality, which is an
incident of the rule of law, is one of the constitutional controls
through which the exercise of public power is regulated by the
Constitution. It entails that both the Legislature and the Executive
'are constrained by the principle that they may exercise no power and
perform no function beyond that conferred upon them by law'.
In this
sense the Constitution entrenches the principle of legality and
provides the foundation for the control of public power.”
[2]
[14]
It was
argued that the applicant ought to have pursued her remedies for
unfair dismissal. It is true that she might well have done,
but
nothing includes her from independently challenging the legality of
the disciplinary measures instituted against her. The respondent
contended that authority for its argument lay in the LAC judgment in
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[3]
,
but that case was dealing with the right to a hearing before a
precautionary suspension and the court held that :
“
A
final declaration of unlawfulness
on
the grounds of unfairness
will rarely be easy or prudent in motion proceedings. The
determination of the unfairness of a suspension will usually be
better accomplished in arbitration proceedings, except perhaps in
extraordinary or compellingly urgent circumstances. When the
suspension carries with it a reasonable apprehension of irreparable
harm, then, more often than not, the appropriate remedy
for an
applicant will be to seek an order granting urgent interim relief
pending the outcome of the unfair labour practice proceedings.”
[4]
(emphasis
added)
[15]
However,
that the matter is distinguishable from this one because the basis of
the claim of unlawful action in this application
rests on illegality
which is not a matter over which a bargaining council has
jurisdiction. At this juncture it should also be
mentioned that while
the suggestion that the applicant’s relief is merely
declaratory in nature is misconceived: the relief
sought is to review
and set aside the resolutions of the municipal council and, if
granted, will have very practical consequence
that the ensuing action
of the respondent in pursuing the disciplinary proceedings was
unlawful and that the outcome of those proceedings
is also a legal
nullity. That is not merely declaratory relief of a hypothetical
nature without practical effect, nor is it a moot
issue. The
associated point raised by the respondent in relation to the
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[5]
decision will be addressed
later.
[16]
Whilst on this point, the municipality’s argument that the
applicant should have taken the
in limine
ruling of the
chairperson of the disciplinary enquiry on review can also be
addressed. Essentially, the chairperson’s ruling
on whether the
enquiry should proceed or not was an issue he was duty bound to
consider. It was also correct for the applicant
to first raise the
issue in the forum whose authority is being challenged, thereby
avoiding premature recourse to the courts. However,
the kind of
ruling under attack is never anything more than a provisional view on
the jurisdictional question, even though it does
affect the
subsequent course of the proceedings in that forum. As a matter of
law, the determination of legal authority to act,
unless specifically
provided for otherwise in statute, is a matter for this court or
another high court to determine, and is determined
on an objective
basis quite independently of what the functionary in that forum
decided. Whether the application to determine the
issue takes the
form of a review of the forum’s jurisdictional ruling or
whether it is simply to set aside that forum’s
deliberations as
null and void for want of legality is a choice of approach open to
the litigant, but the outcome will be decided
on the same factual and
legal basis.
[17]
The crisp issue in this case is whether the municipality was
empowered to institute the disciplinary proceedings
against the
applicant without voting on the resolutions setting the proceedings
in motion. The municipality no longer contends
that it was not
necessary for the Council to vote on the various resolutions but now
alleges that in fact they were voted on. This
is the factual dispute
which the municipality contends should be decided in its favour. In
this regard it is useful to set out
the complete formulation of the
rule laid down in [zRPz]
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
to determine factual disputes in
applications for final relief:
“
In
such a case the general rule was stated by VAN WYK J (with whom DE
VILLIERS JP and ROSENOW J concurred) in
Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C)
at 235E - G, to be:
"...
where there is a dispute as to the facts a final interdict
should only be granted in notice of motion proceedings
if the facts
as stated by the respondents together with the admitted facts in the
applicant's affidavits justify such an order...
Where it is clear
that facts, though not formally admitted, cannot be denied, they must
be regarded as admitted."
This
rule has been referred to several times by this Court (see
Burnkloof
Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty)
Ltd
1976
(2) SA 930
(A)
at 938A - B;
Tamarillo
(Pty) Ltd v B N Aitkin (Pty) Ltd
1982
(1) SA 398 (A)
at 430 - 1;
Associated
South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien
(Pty) Ltd en Andere
1982
(3) SA 893 (A)
at 923G - 924D). It seems to me, however, that
this formulation of the general rule, and particularly the
second sentence
thereof, requires some clarification and, perhaps,
qualification. It is correct that, where in proceedings on notice of
motion
disputes of fact have arisen on the affidavits, a final order,
whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant's affidavits which
have been admitted by the respondent, together with the facts alleged
by the respondent, justify such an order. The power of the Court to
give such final relief on the papers before it is, however,
not
confined to such a situation. In certain instances the denial by
respondent of a fact alleged by the applicant may not be such
as to
raise a real, genuine or
bona
fide
dispute of fact (see in this regard
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T)
at 1163 - 5;
Da
Mata v Otto NO
1972 (3) SA 858
(A) at 882D - H). If in such a case the respondent
has not availed himself of his right to apply for the deponents
concerned to
be called for cross-examination under Rule 6 (5)
(g)
of the Uniform Rules of Court (
cf
Petersen v Cuthbert & Co Ltd
1945 AD 420
at 428;
Room
Hire
case
supra
at 1164) and the Court is satisfied as to the inherent credibility of
the applicant's factual averment, it may proceed on the basis
of the
correctness thereof and include this fact among those upon which
it determines whether the applicant is entitled to
the final relief
which he seeks (see eg
Rikhoto
v East Rand Administration Board and Another
1983
(4) SA 278 (W)
at 283E - H). Moreover, there may be exceptions to
this general rule, as, for example, where the allegations or denials
of the
respondent are so far-fetched or clearly untenable that
the Court is justified in rejecting them merely on the papers (see
the remarks of BOTHA AJA in the
Associated
South African Bakeries
case,
supra
at 924A).”
[6]
[18]
As mentioned, it was argued by the respondent that there was now a
dispute of fact about whether or not the
resolutions were voted upon.
Contrary to the submissions made when the point was argued at the
disciplinary enquiry, the municipal
manager made the following
statements in his answering affidavit:
“
9.4
The basis for the application is after all a factually incorrect
premise-that the impugned decisions/resolutions of October
2014 when
not voted on by the first respondent. Later I am demonstrate this
assertion is incorrect. The resolutions were indeed
voted on.
…
20.4
Fourthly, it is apparent
ex facie
the resolution itself that
the resolution was after all voted. I can confirm this since I was
present during the process of deliberations.”
[19]
Of all the resolutions referred to, the only one which contains an
explicit reference to voting is the first
of four resolutions
purportedly taken at the Council meeting on 31 October 2014, which is
contained in the extract from the minutes
set out below:
“
Thereafter,
the Council RESOLVED
1.
That the chief financial officer be and is hereby formally
precautionarily suspended with immediate effect
with full pay for a
period not 90 days. This is in line with section 6 (1)(a) and (b) of
the Local Government Systems Act, no 32
of 200: Disciplinary
Regulations for Senior Managers.
The suspension was approved by 26
casted votes, with no opposing view or vote
.
2.
That the disciplinary proceedings against the chief financial officer
be instituted within the prescribed period
thereof.
3.
That the municipal manager be and is hereby mandated to appoint the
presiding officer that will preside over
the disciplinary processes
and hearings.
4.
That Ms N Gixane, a chief accountant, be and is hereby appointed as
the Acting Chief Accountant for a term
of three months.”
[20]
In the previous meeting on 3 October 2014 the report on the alleged
misconduct of the applicant tabled and
ended with recommendations,
inter alia, that disciplinary procedures should be implemented
against her that independent investigator
should be appointed and
that she be suspended. The minutes of that meeting show that a motion
to adopt the report on the allegations
against her was moved and
seconded, but the minutes contained no mention of any vote on the
resolution.
[21]
In this instance, there is no evidence that the minutes were ever
amended when they were presumably adopted
in subsequent meetings to
reflect that voting had taken place on those resolutions where no
specific reference to quote is made.
The municipal manager in his
answering affidavit makes no attempt whatsoever to explain why the
municipality had never argued during
the disciplinary enquiry that
the resolutions had in fact been voted on, nor does he attempt to
explain why the representation
was made by the municipality to the
chairperson of the enquiry that he would lead evidence to the effect
that resolutions were
often taken without voting. The failure of the
municipal manager to explain the contradiction between the case that
was argued
at the disciplinary enquiry and his current position that
the resolutions were indeed voted upon, given the absence of any
minutes
correcting those resolutions or any verified extract of a
transcript of the proceedings, and given also that the municipality
had
known since early 2015 the applicant had challenged the
submissions on that basis but it had done nothing what it now claims
is
a factually correct position, in my view renders his denials that
the resolutions were voted on so untenable and far-fetched that
they
cannot be accepted as true. Accordingly, as a matter of fact I am
satisfied that the only resolution which was voted on was
the
resolution suspending the applicant.
[22]
In consequence, as the other resolutions were not lawful, they were
legally inconsequential and could not
empower the respondent to
proceed with disciplinary action against the applicant because they
violated the previously mentioned
provisions of the Structures Act
and the Constitution.
[23]
The last issues that need to be addressed concern the municipality’s
defence that if the applicant
was entitled to set aside the
resolutions, the time has passed for doing so and the decision to
dismiss her has now rendered any
prior unlawfulness in the
disciplinary process irrelevant because the decision to dismiss her
still stands.
[24]
In
this regard, the respondent firstly argues that the applicant ought
to have challenged the Council’s authority to proceed
immediately after the chairperson ruled in its favour. In support of
this contention, the respondent referred to the case of
Lebu
v Maquassi Hills Local Municipality & others (3)
[7]
,
in which the applicant in that matter had sought an interdict to
prevent the respondent municipality from proceeding with disciplinary
proceedings against him until it had complied with various provisions
of the disciplinary regulations. However, that case is not
authority
for the proposition that such a challenge must be brought to court at
early stage on an urgent basis. In
Booysen
v Minister of Safety & Security & others
[8]
,
the LAC noted that sometimes a timeous intervention by the court
can
save more time and money than letting proceedings run their course,
but the court did not suggest that a failure to let an enquiry
run
its course before approaching the court would non-suit an aggrieved
employee. The respondent referred to the recent Constitutional
Court
decision in
Khumalo
And Another v MEC for Education, Kwazulu-Natal
[9]
in which the court reaffirmed the “long standing rule”
that:
“…
a
legality review must be initiated without undue delay and that courts
have the power (as part of their inherent jurisdiction 30
to regulate
their own proceedings) to refuse a review application in the face of
an undue delay in initiating proceedings or to
overlook the delay.
This discretion is not open-ended and must be informed by the values
of the Constitution. However, because
there are no express,
legislated time periods in which the MEC was required to bring her
application, there is no requirement that
a formal application for
condonation needs to have been brought.
[25]
In
this case, the applicant pertinently and pointedly timeously raised
her objection to the proceedings with the chairperson of
the enquiry
and there was no evidence that she waived her right to challenge it
in court. Having unsuccessfully challenged the
proceedings while they
were in progress, the applicant decided to let them run their course
having made clear her objection to
the fundamental unlawfulness
thereof at the outset. She could have tried to interdict the
proceedings but then would also have
had to satisfy the court she was
entitled to do so on an urgent basis and run the risk of the matter
being struck off for lack
of urgency. It is well established that the
court will only rarely intervene in incomplete disciplinary
proceedings.
[10]
The applicant
wasted no time launching the review once the process had run its
course. In
Khumalo,
the
court also emphasized that there are a number of factors that come
into play in deciding if a delay should be condoned. In that
case the
MEC, whom the court held had a duty to correct any unlawfulness
relating to a promotion
[11]
,
waited 20 months before attempting to set the promotion aside without
any explanation for the delay. However, because of the hesitancy
of
the courts towards intervening in incomplete disciplinary
proceedings, I do not think it can be said on the facts of this
matter
that when the applicant launched these proceedings she had
unduly delayed. Accordingly, it is not necessary to consider if the
factors governing the condonation of such a delay are satisfied. It
must also be remembered in this matter, that, it is not as if
the
applicant surprised the respondent with her challenge to the legality
of the proceedings. The respondent was well aware of
the flaw in the
proceedings she had raised but did nothing to regularize them which
it could have done.
[26]
The last argument raised by the respondent is that any previously
invalid acts in relation to the institution
of the disciplinary
proceedings did not invalidate the conclusion of the process as a
result of which she was dismissed. In support
of this contention it
seeks to rely on the principle in
Oudekraal.
In argument, the
respondent submitted that the effect of that principle is that the
legal efficacy of the applicant’s dismissal
was independent of
the antecedent acts leading up to it and she could not mount a
‘collateral attack’ on her dismissal
by trying to set
those aside.
[27]
In
Oudekraal
the SCA
found that the Administrator’s original permission to establish
a township had been unlawful because the decision
had been made
without regard to the presence of cultural and religious sites on the
land, which was a material factor that ought
to have been considered
in granting the permission. However, whether subsequent decisions
taken in relation to the proclaimed land
were valid or not did not
depend on whether the initial act was valid but rather whether its
substantive validity was a necessary
precondition for the validity of
consequent acts. If the validity of consequent acts was dependent on
no more than the factual
existence of the initial act, then the
consequent act would have legal effect for so long as the initial act
was not set aside
by a competent court.
[12]
It is apparent from this principle that the application before me is
not one in which the consequent acts are lawful simply
because
certain decisions were taken to institute disciplinary proceedings
against the applicant and to make the various appointments
mentioned.
The impugned decisions specifically empowered the holding of the
enquiry in terms of the regulations and the legal authority
of the
council to authorise those proceedings was inextricably tied up with
the lawfulness of those resolutions as the authority
to conduct the
proceedings and to dismiss the applicant flows from the lawfulness of
the disciplinary proceedings. In consequence,
a successful attack on
the lawfulness of those antecedent resolutions completely undermines
the legal foundation of the all the
subsequent acts, because it
renders the entire disciplinary proceedings a legal nullity. As a
result, the applicant’s dismissal
for misconduct cannot be
lawful as it was effected in breach of the regulations governing the
taking of disciplinary action against
senior managers because the
decisions that needed to be taken in terms of those regulations,
which were prerequisites for establishing
a lawful disciplinary
enquiry were not lawfully valid resolutions of the municipal council.
In any event, it is not the council
that is empowered in terms of
Regulation 12 to impose a sanction. Thus, even if the enquiry had not
been invalidly initiated, it
was the chairperson of the enquiry who
was empowered to impose the sanction, which he only recommended.
[28]
For the purposes of formulating the appropriate relief, the order
made reflects this.
The counter-application
[29]
The counter-application was primarily to set aside the respondent’s
own decision to afford the applicant
a right of appeal against its
decision to dismiss her. As the decision to dismiss her is a
legal nullity, this application
ceases to be relevant.
Order
[30]
In light of the above, the following orders are made:
30.1
the resolution of the Special Council meeting of the first respondent
held on 3 October 2010 adopting the report
on allegations against the
applicant and which appear in paragraph 6.5 of the minutes of that
meeting is reviewed and set aside
and is declared null and void;
30.2
the resolutions of the Council meeting of the first respondent dated
31 October 2010 instituting disciplinary proceedings
against the
applicant, authorising the municipal manager to appoint a presiding
officer are reviewed and set aside and declared
null and void;
30.3
the resolution of the Council meeting of the first respondent on 31
August 2015 dismissing the applicant is reviewed
and set aside and is
declared null and void.
30.4
The first respondent’s counter-application is dismissed.
30.5
The first respondent must pay the applicant’s costs including
the costs of two counsel.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
PHS Zilwa
assisted by NR Mtshabe instructed by NZ Mtshabe Inc
FIRST
RESPONDENT:
Madonsela SC
instructed by X Ntshulana
[1]
Local
Government : Disciplinary Regulations for Senior Managers, 2010,
Notice No 344, GG 34213 dd 21/04/2011.
[2]
[2005] ZACC 3
;
2006
(3) SA 247
(CC)
at
272.
[3]
(2012)
33
ILJ
2033 (LAC)
[4]
At
20-52, para [46]
[5]
2004 (6) SA 222 (SCA)
[6]
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
a
t
234F-235D.
[7]
(2012)
33 ILJ 2623 (LC)
[8]
(2011)
32
ILJ
112 (LAC)
at
129, para [51]
[9]
2014
(5) SA 579 (CC)
[10]
See
Jonker
v Okhahlamba Municipality & others
(2005)
26
ILJ
782 (LC)
at
789:
“
[34]
Applications to interdict disciplinary proceedings are granted in
the most exceptional circumstances (
Mantzaris
v University of Durban-Westville & others
(2000)
21 ILJ 1818 (LC)
;
Molefe
v Dihlabeng Local Municipality
(2004)
25 ILJ 680 (O)
)”
[11]
At
590, para [35].
[12]
At
243-244, para [31].