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[2017] ZALCJHB 273
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South African Municipal Workers Union and Others MEC for COGHSTA and Others (J1677/17) [2017] ZALCJHB 273 (1 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J1677-17
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
First Applicant
PERSONS
LISTED IN ANNEXURE A
Second to Further Applicants
and
MEC
FOR COGHSTA: S NTOMBELA N.O
First Respondent
MATJHABENG
LOCAL MUNICIPALITY
Second Respondent
EVANS
THABISO TSOAELI N.O.
Third Respondent
Heard:
28 July 2017
Delivered:
1 August 2017
JUDGMENT
WHITCHER
J
[1]
On 13 July 2017 the second respondent convened a Special Council
meeting and resolved that the third respondent be appointed
as the
Municipal Manger of the second respondent, effective from 1 August
2017. The appointment has still to be approved by the
MEC.
[2]
The
applicant seeks on an urgent basis an order staying the appointment
of the third respondent as Municipal Manager pending the
finalisation
of an application (still to be filed) by the applicant for the review
and setting aside of the appointment of the
third respondent.
[3]
The applicant relies for the relief sought on
a set of
documents annexed to the founding affidavit. The annexed document
comprises three separate documents.
[4]
The first reads as follows:
“
A87/2006
Draft policy: Recruitment and
Selection (EMHR) 5/3/B
Purpose of Report
To request Council to approve the
attached Draft Policy as the Policy of Matjhabeng Municipality
Council resolved
(28 November
2006)
1. That the proposed
Draft Policy: Recruitment and Selection BE ADOPTED as a Council
policy.
2. That SAMWU and
IMATU BE CONSULTED through the Local Labour Forum on Policy.”
[5]
The second document which follows reads as follows:
“
A86/2006
DRAFT POLICY: RECRUITMENT AND
SELECTION (EMHR) (5/3/B)”
[6]
The third document is headed: “MATJHABENG MUNICIPALITY: Policy:
Recruitment and Selection”. Clause 4.7 of this document
provides that the selection panel for the appointment of a municipal
manager must consist of the mayor and the MMC responsible
for
Corporate Support. It further provides that “parties will be
proportionally represented” on the panel and must
include “one
Labour Representative = observer status”.
[7]
The applicant contends that the above documents, read together, means
that in 2006 the second respondent via a council resolution
formally
adopted a policy which required the second respondent to include the
applicant as an observer in the appointment process
of the third
respondent, which the second respondent did not do. The applicant
contends that this requirement is crucial because
it serves to make
the appointment process transparent.
[8]
In its founding affidavit, the applicant further contended that the
policy moreover required that the selection panel tasked
with the
appointment of a municipal manager include councillors representing
all political parties within the municipality. The
applicant
contended that the selection panel which recommended the appointment
of the third respondent was not representative of
all political
parties. At the hearing however, the applicant only pursued the
submission regarding its inclusion as an observer
in the selection
process.
[9]
The second respondent opposed the appliction on various grounds. Its
main argument on the merits is that section 54A of the
Local
Government Muncipal Systems Act 7 of 2011 read with Regulation 12(3)
do not impose the requirements sought by the applicant.
Regulation
12(3) provides that the selection panel for the appointment of a
municipal manager must consist of at least three and
not more than
five members, constituted as follows: the mayor or his or her
delegate, a councillor designated by the municipal
council and at
least one other person, who is not a councillor or a staff member of
the municipality, and who has expertise or
experience in the area of
the advertised post.
[10]
The second respondent contends that in the interest of uniformity in
local government, the Act and Regulations were amended
to
specifically provide for the necessary entities and persons to be
present during the meeting where the Municipal Manager is
appointed.
If every internal policy of every Municipality dictates provisions
contradicting the Act and Regulations there will
not be uniformity
between the various local municipalities, and this is not in the
interest of ordered administration and justice.
[11]
The Act and Regulations were specifically designed to address the
appointment of Municipal Managers. The second respondent
has fully
complied therewith and it cannot be held to an internal policy that
requires the applicant to observe an appointment
meeting, when the
applicant is not granted that right by the Act and Regulations.
[12]
The applicant does not submit that the second respondent did not
comply with the Municipal Systems Act and the relevant Regulation.
Analysis
[13]
I found authority for the proposition that a
municipal
council is obliged to comply with its own resolutions, until such
time as it is either rescinded or set aside on review.
[1]
[14]
Moreover, in my view the purported policy
regarding the observer status of the unions is not in conflict with
the Regulations and
Act. The policy can be practically incorporated
into the requirements set out in the Act and Regulations and does not
impose an
onerous requirement on the appointment process and second
respondent.
[15]
However, I am not persuaded the applicant is entitled to the drastic
relief it seeks.
[16]
There is nothing in the documents relied on by the applicant which
indicates that this court can be confident that the policy
on which
the applicant relies was finally and formally adopted by the council
via a council resolution. The documents clearly refer
to a draft
policy which was still to be consulted on by the parties. As argued
by the second respondent at the hearing there is
nothing before the
court which confirms that the council eventually adopted the final
policy.
[17]
The second respondent complied with the Act and Regulations which
regulates the appointment of the third respondent –
in these
circumstances it cannot be argued that the conduct of the second
respondent or the appointment was unlawful.
[18]
The issue of transparency in this case can be mitigated and to an
extent resolved by the applicant approaching the second respondent
for all the minutes and documentation that was produced during the
appointment process, that is, the record of the appointment
proceedings.
Order
[19]
The application is dismissed with no order as to costs.
_________________________
B
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv R Venter
Instructed
by:
Maenetja Attorneys
For
the Second Respondent:
Adv W Edeling and Adv A Loubser
instructed
by:
Bokwa Attorneys
[1]
See:
Manana
v King Sabata Dalindyebo Municipality
[2011] 3 BLLR 215
(SCA).