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[2017] ZALCJHB 342
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Nyanda v City of Johannesburg and Others (J1797/17) [2017] ZALCJHB 342 (19 September 2017)
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: J 1797/17
In
the matter between:
ZWELIBANZI
VELAPHI NYANDA
Applicant
and
THE
CITY OF JOHANNESBURG
First Respondent
THE
CITY MANAGER OF THE CITY OF
JOHANNESBURG
Second Respondent
THE
HEAD OF DEPARTMENT FOR PUBLIC
SAFETY FOR THE CITY OF
JOHANNESBURG
Third Respondent
Heard
:
22 August
2017
Delivered
:
19 September 2017
Summary:
(Urgent application – unnecessary delay in bringing application
and short time frame for opposition
unacceptable – not urgent –
merits weak - expectation of permanent appointment tenuous at best -
costs)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an urgent application for interim relief. The applicant is a
traffic officer currently serving as the Chief of Police
for
Johannesburg. In summary, the interim relief he seeks is:
1.1 An
interdict preventing the City of Johannesburg (‘the City’)
from appointing anyone
to replace him or taking any steps to do so,
including interviewing candidates.
1.2 A
declarator that he should retain his position as chief of police.
1.3 To
restore his remuneration and conditions of service as they existed at
4 August 2017.
[2]
This interim relief is sought while he awaits the outcome of two
alternative courses of action he might take. The first is a
referral
of a dispute about whether he should be converted from a fixed term
contract employee to a permanent one to be dealt with
by the
objection/dispute resolution committee established under clause 12 of
the collective agreement on the Conversion of Fixed
Term Employees in
Terms of the Institutional Design concluded on 28 September 2012
(‘the conversion agreement’). The
alternative course of
action he might take is a court application to determine whether he
should be permanently employed by the
City of Johannesburg (‘the
City’). At the time of the hearing of this application, he had
not taken any steps to invoke
either of these remedies.
[3]
The 300 odd page application was served on 15 August for 22 August (a
period of 4 court days). The respondent was expected to
reply barely
48 hours after receiving the application from the applicant on 15
August. This was an unreasonably short period given
the issues
canvassed in the application. I will address this further when
dealing with urgency below.
Background
[4]
Nyanda was employed under a fixed term contract of employment
concluded in 2013. In terms of clause 4.3 of that contract, it
was
deemed to have commenced on 5 August 2013 and would terminate
automatically on 4 August 2017. In summary, other provisions
in the
contract of relevance to the application provide that -
4.1 The
agreement was entered into in accordance with section 57 (1) of the
Local Government: Municipal
Systems Act, 32 of 2000 (‘the
Systems Act’) in order to “record the special employment
relationship between the
City and the employee, being the Chief of
Police directly accountable to the City Manager” (clause 2.1).
4.2 The
parties agreed that the performance agreement which the parties are
required to include under
section 57 (2) of the Systems act, would
form an integral part of the employment contract (clause 2.2).
4.3
Nyanda in his capacity as Chief of Police was “directly
accountable” to the city manager
(clause 4.2).
4.4 It
was recorded that there was no expectation that the agreement would
be renewed or prolonged,
except by written agreement between parties
and that the nonrenewal of the contract would not constitute a
dismissal of Nyanda,
and in the event the appointment was renewed
“the new appointment is subject to the normal recruitment
process where the
Employee has applied for, and being considered for,
and offered the employment” (clause 4.4).
4.5 To
emphasise the last point, the contract also stipulated that “(a)ny
appointment subsequent
to the termination date shall be subject to
the City’s normal recruitment procedures and other requirements
relevant to such
appointment”(clause 4.5).
4.6 As a
condition precedent, the parties specifically acknowledged that the
contract terminated automatically
if a performance agreement between
Nyanda and the city manager, “as contemplated in section 57
(2)” of the Systems
act, was not concluded within 60 days of
the commencement of the contract (clause 5).
4.7
Provision was made for the parties to agree on the performance
agreement and failing agreement
on annual key performance areas the
city manager was entitled to determine the same (clause 6.1).
4.8 The
dispute resolution procedure of the contract provided that any
dispute arising from an unresolved
grievance relating to the
agreement or about the interpretation and application of the
agreement should be submitted to private
arbitration (clause 24).
[5]
It is common cause that no performance agreement was entered into
within 60 days of the commencement of Nyanda’ contract’
contrary to the requirements of section 57 (2) of the Municipal
Systems act and clause 5.1 of the contract itself. The pertinent
provisions of section 57 state:
“
57
Employment contracts for municipal managers and managers directly
accountable to municipal managers
(1) A person to be appointed as the
municipal manager of a municipality, and a person to be appointed as
a manager directly accountable
to the municipal manager, may be
appointed to that position only-
(a)
in terms of a written employment contract with the municipality
complying with the
provisions of this section; and
(b)
subject to a separate performance agreement concluded annually as
provided for in
subsection (2).
(2) The performance agreement referred
to in subsection (1) (b) must-
(a)
(i) be concluded within 60 days after a person has been
appointed as the
municipal manager or as a manager directly
accountable to the municipal manager, failing which the appointment
lapses: Provided
that, upon good cause shown by such person to the
satisfaction of the municipality, the appointment shall not lapse;
and
(ii) be concluded
annually, thereafter, within one month after the beginning of each
financial year of the municipality;
(b)
in the case of the municipal manager, be entered into with the
municipality as represented
by the mayor or executive mayor, as the
case may be; and
(c)
in the case of a manager directly accountable to the municipal
manager, be entered
into with the municipal manager.”
[6]
Notwithstanding the failure to conclude the performance agreement,
the parties conducted themselves as if Nyanda was lawfully
employed
as the Chief of Police. The parties are in agreement this, except
insofar as Nyanda might suggest that he was indefinitely
employed.
However, in paragraph 22 of his founding affidavit, Nyanda relies on
clause 17.1.2 of the written contract as the basis
for his
appointment to the position of Chief of Police.
[7]
The applicant claims that in accordance with that clause, he reported
directly to the former city manager. He claimed that in
2013 when he
queried with the former Mayor, Mr P Tau, why he had been employed on
a four-year contract as opposed to a five-year
contract, he was
advised that there were imminent changes planned to the management
structure of the City and when these were implemented
he would be
changed from a limited duration contract to a permanent one, at which
stage he would report to the Head of Public Safety
rather than
directly to the city manager. The anticipated changes in the
management structure appear to have only taken place at
the end of
2014 or early in 2015. In terms of that structure he claims he then
reported to the new head of Department for Public
Safety (‘the
HoD’), Mr H Msimang, and that he no longer reported to the city
manager or attended council meetings or
mayoral committee meetings
like previously did. Similarly, departments which previously reported
to him now reported to Msimang.
What also changed was that, whereas
previous performance assessments were conducted by the city manager
or on the city manager’s
behalf, after the changes, Msimang
completed his performance assessment scorecard. Nyanda claims that in
2015 and 2016 when he
raised this perceived reduction in his
executive powers with the former city manager he never got a direct
answer from him.
[8]
In consequence of these changes, Nyanda argues that his position as
Chief of Police has now been moved down to a level 3 post
whereas
previously his post was level 2 because he reported directly to the
city manager who occupies post level 1.
[9]
The City maintains that Nyanda
remained accountable to, and under the direction of, the city manager
and continued to report to
him in respect of the matters he was
employed to perform. It concedes that Nyanda did also report to the
head of Department, but
maintains that this was mainly for
administrative matters. Moreover, the HoD did not have control or
authority over him and he
remained the executive head of the
municipal police services and was responsible for the duties he was
required to oversee in terms
of section 64C(2)(a) to (h) of the SAPS
act 68 of 1995.
[1]
Therefore he continued to report to the municipal manager. In so far
as certain functions such as finance and supply chain matters
were
allocated to other staff, the City maintains that these were not
executive functions but administrative ones.
[10]
The applicant claims that in early 2015, management structures at the
City were changed and he no longer reported to the city
manager but
to the Head of the Department for Public Safety. The respondents
agreed that there were changes to the City’s
organogram and
that Nyanda did report to the HoD “in some instances...over
administrative matters”, but “not
on core issues the
applicant was employed to perform.” The City maintains that
even if it were true that Nyanda reports to
the HoD, he did not
report exclusively to him and it would be sufficient for the purposes
of classifying his post level as level
2 that he still reports to the
city manager
[11]
It is not disputed that clause 3.3 of the conversion agreement
provides that all employees of the City in municipal structure
level
3 and below would be employed on a permanent basis. The definition of
an “Affected employee” in clause 2.2.2
of the conversion
agreement describes such employees as “all the fixed term
contract employees employed on reporting levels
3 and below with in
the C0J’s existing municipality structure,
and listed in the
schedule annexed marked “A”, as at the signature date
”
(emphasis added).
[12]
The conversion agreement also contains the following definitions:
“
2.2.10
“Excluded Employees” mean senior employees linked to
political offices, including
not limited to the Speaker and the
Executive Mayor, as set out more fully in Annexure “B”,
levels 1 and 2 Employees,
and employees currently and in future
employed by the City in terms of paragraph 11 herein
[2]
.
...
2.2.11
“Levels 1 and 2 Employees” means the employees in pointed
by the municipal
council and directly reporting to the city manager,
as set out more fully in Annexure “C”. “
[13]
None of the Annexures referred to in the conversion agreement were
included in the conversion agreement attached to the founding
affidavit, but Nyanda concedes that he would not have been one of the
“affected employees” listed in Annexure “A”
of the agreement. Nonetheless, on the basis of the situation of
another senior employee Nyanda believes that he ought to have the
opportunity to contest his exclusion from post level 3. Clause 6.2 of
the conversion agreement states:
“
To the best of the Parties’
knowledge and belief
all Affected Employees have been listed
in Annexure A hereto. It is agreed however; that should any employee
have proper reason to believe that they fall within the categories
considered
for inclusion under Annexure “A
” such
employee may refer a dispute in terms of clause 12 to the
Objection/Dispute Resolution Committee.”
(emphasis added)
It
is common cause that to date the dispute resolution committee
referred to has not been established, but of course that can be
done
if required.
[14]
Nyanda compares his situation to that of the head of Emergency
Management Services (‘EMS’), Mr Makola. He claims
that
his position was affected in the same way by the restructuring. Both
EMS and JMPD were merged into the Department of Public
Safety to
whose head both Nyanda and Makola now reported. He claims the City
took the view that the position of executive head
of EMS was now in a
level 2 post and accordingly should be converted to a permanent
contract. This view was informed by two legal
opinions provided by
the City’s attorneys. Nyanda simply asks that he be treated the
same and that his fixed term contract
be converted as Makola’s
was into a permanent (indefinite) employment contract because he too
falls into the category of
an “affected employee”.
[15]
The gist of the first legal opinion was that Makola was no longer an
employee engaged in terms of section 56 of the MSA (i.e.
he no longer
reported directly to the city manager as a result of the
restructuring). In the first opinion letter, the author expressly
stopped short of giving any opinion on whether his fixed term
contract of employment had been converted into permanent employment
by virtue of the conversion agreement.
[16]
In the second opinion letter dated 10 January 2017, which addresses
this question directly, the author noted that Makola’s
position
as Executive Head of Emergency Management Services was included in
Annexure “C” to the conversion agreement
titled “List
of Designations - S 57 Employees”. That annexure set out
employees who were
excluded
from the category of affected
employees under the conversion agreement. The opinion alluded to a
footnote in the annexure which
stated “Designation in current
approved COJ high-level structural design. These positions may change
when current structures
are revised”. The opinion concluded
that
at the time
of the conclusion of the conversion
agreement, Makola’s position was that of a level 2 employee and
therefore expressly excluded
from the conversion agreement. The
opinion also notes that an employee such as Makola who had reason to
believe that they fell
within one of the categories of affected
employees in Annexure “A” could have asked to be included
in that category
under clause 6.2 of the conversion agreement. The
final remarks in the opinion are significant and state:
“
7.4
The
principle
expressed in the conversion agreement,
even
if not immediately enforceable
, is that if an employee is on
level 3 or below then the “general form of employment”
was intended
to be permanent.
8. Thus,
if it is correct
that
in terms of the city’s present structure/organogram the
Executive Head: EMS
no longer reports directly
to the City
Manager, then
it would be consistent
with the City’s
general approach and clause 11 of the Conversion Agreement that he be
placed on a permanent contract.”
(emphasis
added)
In
short, the second opinion did not suggest that Makola was entitled to
enforce a right to permanent employment using the grievance
and
dispute processes of the conversion agreement. However, it suggested
that it would be consistent with that agreement and the
City’s
policy to employ him on a permanent contract. The applicant maintains
that because the conversion agreement remains
in force and is binding
on the City, he can rely on that and the conversion of the fixed term
contract of Makola to insist that
he be treated similarly and that
any different treatment of him would be unfair.
[17]
Notwithstanding the similarity between Makola’s restructured
position, also being located within the Public Safety Department
in
the new organogram, the City claims that Nyanda’s position is
still somewhat different from that of Makola. In this regard,
the
City points out that under section 64C(2)(h) of the Police Act ,the
Chief of Police exercises control of the municipal police
service
subject,
inter-alia
, to the directives of the chief executive
officer of the municipality and is required to perform such duties
imposed on him by
the chief executive officer. However, in the
gazetted advertisement for the Chief of Police post-dated 3 April
2017, the City was
more equivocal and stated:
“
The position of chief of police
is not a direct report to the city manager and is therefore not
dealt with under the Municipal Systems act 32 of 2000
. It is
however, regulates through the
South African Police Service Act 68 of
1995
which requires that
for certain matters
the head of a
municipal police service must report to the CEO of the municipality.
It is for this reason that the city follows
a similar process as with
section 56
managers in that the Council is requested to approve the
commencement of process and that a counsellor be designated to…form
part of the Selection and Interview Panel.”
It
would seem therefore that, the City does not in fact regard the
position of the Chief of Police as clearly being a level 2 position
as a matter of law, which lends some credence to Nyanda’s claim
about his current status. However, there is still a question
mark
about whether or not the fact that the Chief of Police does report
directly to the city manager on some issues, is sufficient
to
classify the post as one falling within section 56 of the Systems
Act.
Urgency
[18]
Nyanda bases his claim of urgency on the fact that he was told not to
return to work on 3 August 2017. Having regard only to
that date, the
applicant took approximately 11 days to prepare his application.
However, that date is not when the situation he
seeks to reverse
first arose.
[19]
The applicant applied for reappointment to his post in mid May 2017
and the respondent contends that he must therefore have
been aware
that his services would be terminated on 4 August 2017. Insofar as
Nyanda relies on the terms of his fixed term contract
as governing
his employment despite the performance agreement not being concluded,
his application for the post is consistent with
the procedure for
renewal of the appointment provided for in clauses 4.4 and 4.5 of the
contract, which envisaged that even though
he was the former
incumbent of the post, he would have to subject himself to applying
for the post like any other candidate.
[20]
Although he applied for the position and was granted an interview
scheduled for 21 July 2017, he decided not to go to the interview
because his attorneys had written to the City on 24 June 2017. The
letter written by his attorneys in June essentially sets out
his
claim to be permanently employed based on the application of the
conversion agreement. The letter further put the City on terms
to
halt the recruitment process for a replacement and, taking into
consideration the conversion agreement and opinions of the City’s
attorney in relation to Makola, the letter demanded that Nyanda’s
contract of employment be converted to permanent status
in accordance
with clause 11 of the conversion agreement. The letter concluded that
if no response was received within five days,
the attorneys already
had instructions to approach the court for an interdict to halt the
recruitment process pending the determination
of Nyanda’s
employment status.
[21]
Nyanda’s deadline to the City came and went without any
response. Instead of acting on the threat made in the letter
of 26
June, Nyanda issued further letters demanding a response on 7, 17 and
20 July respectively. On 27 July 2017 the City finally
did respond,
setting out in considerable detail why it did not believe he could
rely on the conversion agreement. The City sought
confirmation from
Nyanda whether he still wish to apply for reappointment and notified
him that it would oppose any urgent application
he might bring. It
was only some two and a half weeks’ later after this response
that Nyanda launched his urgent application,
which he had first
threatened to bring on 24 June 2017, some seven odd weeks earlier.
[22]
Mr Bishop
,
who appeared for the applicant, argued that the court should take an
indulgent view of Nyanda’s delay in bringing his application
in
mid-August despite apparently being ready to do so by the end of
June. In this regard, he referred to a number of cases in which
it
was held that a party endeavouring to resolve an issue before having
recourse to litigation should not be prejudiced because
it first
tried to resolve the matter by other means. In
Stock
And Another v Minister Of Housing And Others
[3]
,
based on the correspondence between the parties in a dispute over the
development of a Temporary Residential Area under a land
use planning
ordinance, the Cape High Court rejected the respondent’s
argument that since the applicant had known of the
respondent’s
stance late in October, it could not bring an urgent application
early in December the same year to stay the
development pending
review proceedings. Having regard to that matter, it is clear that
the applicant after discussions with the
respondent had made
proposals in late October to settle the matter and the respondent
kept requesting extensions of time to respond
to the offer, the last
of which was to 1 December that year. The application was launched
just over a week later when the response
was still unforthcoming and
it had become evident that construction was proceeding. The applicant
also referred to the Constitutional
Court case of
South
African Informal Traders Forum and others v City of Johannesburg.
[4]
In that matter, informal traders had been forcibly evicted from
trading stalls and have their goods confiscated during October
2013.
The last evictions to place on 30 October. On two November, an
agreement was reached between the traders and the city in
terms of
which a verification and reregistration process was agreed to,
following which the traders would be allowed to return
to their
trading stalls. Despite the verification and reregistration process
being done during the week of 4 November, traders
were not allowed to
return to their stalls and those who did so were forcibly removed.
Between 8 and 14 November, the traders engaged
the municipality to
give effect to the agreement of 2 November without success and
proceedings were launched for urgent interim
relief on 15 November.
[23]
Mention was also made of the
case of
Nelson Mandela
Metropolitan Municipality and others v Grevenouw CC and others
.
[5]
In that case the court had held that a residents’ association
which launched an urgent application on 19 December 2002 to
stop the
respondents from carrying on a bar and restaurant business in
contravention of the zoning and noise control regulations.
The
applicants had first alleged non-compliance with the zoning
conditions in a letter to the respondents on 7 November 2002. In
a
reply dated 21 November 2002, a vague undertaking was made by the
respondents that they would ensure that they would not create
any
further nuisance at common law to the extent that this was the case.
In the meantime, the applicants had discovered other statutory
infringements of the respondents and on 22 November, the applicants
reserved their rights and demanded that the respondents remedied
their breaches of zoning conditions within 48 hours. The respondents
then proposed a meeting on 9 December to try and resolve the
issues,
which took place. The meeting was unsuccessful and the applicants
made further demands on the respondents in correspondence
from 10 to
13 December, which ended with a warning that if the demands were not
complied with an interdict would be launched. Six
days later, the
applicants brought the application. The court held that the
applicants have not tracked their feet but undertook
efforts to
resolve the problem and when that failed, by requiring an
undertaking. When that was not forthcoming, it investigated
further,
so it had evidence of the level of noise emanating from the
[respondents premises]. In my view, it approached its statutory
duty
of safeguarding the rights and interests of ratepayers in a
responsible manner by seeking to persuade the respondents to comply
and then only approaching the court for relief.”
[6]
Lastly, Nyanda suggested that the recent unreported case of
Nowalaza
and Others v Office of the Chief Justice and Another
[7]
also suggested the Courts take an indulgent view of leniency in cases
of this nature. Though it might appear that in that matter
the
applicants, who had sought an urgent declarator confirming the status
of their appointment as judges’ secretaries, knew
in early
April 2017 when their posts were advertised that their appointments
were not assured, on 21 April they received what should
have been
reliable information that they would be appointed either permanently
or for three years. This information was only controverted
on 9 May
when the employer announced that they would have to apply for their
positions like anyone else. Within a week of this
announcement a
formal letter of demand had been served and by 23 May, they had
launched the application. Like the
Informal
Traders
matter, this was a
case where reassuring representations from the respondent reasonably
justified them not acting at the first sign
of a threat to their
rights.
[24]
I do not think that the cases cited are on a par with this one on the
question of self-created urgency. In the
Informal Traders
and
Stock
cases, the applicants only launched urgent applications
once it became clear that the respondent party had either reneged on
a previous
resolution of the matter or had repeatedly failed to
fulfil its own undertakings to respond to a settlement of the
dispute. In
the
Grevenouw CC
case, the applicants
brought their application within 10 days of the failed meeting
between the parties to resolve the issue. In
the first two cases, the
respondent party had at some stage given the applicants hope or
assurances that the matter would be resolved
and it was only when
those assurances were reneged upon or when it became apparent that
the respondent had given the applicants
false hope that it became
obvious they would have to launch the proceedings. In the
Grevenouw
CC
matter, the applicants needed to gather additional evidence
before launching proceedings and did so within 10 days of an attempt
to settle the matter amicably failed. In this instance, the City gave
Nyanda no reason to believe it was amenable to acceding to
his claim
because it never responded at all to his attorney’s letters
until late July. When it did so, its response was unequivocal.
By
that stage, the applicant’s attorney should have been ready to
launch proceedings within a matter of days at the very
latest.
[25]
The explanation for doing so only on 14 August, was that it was only
on 3 August he received the letter from the respondent
confirming the
termination of his employment. However, there was no reason based on
any representations by the City that it was
reconsidering his
position, or that it no longer considered the written contract
determinative of his employment status. Accordingly,
there is no
reason to believe that this confirmation came as a surprise.
Everything suggests that by late June Nyanda had already
decided on
what he believed was his true legal status as an employee and nothing
changed since then until he launched his application
on 15 August. In
addition, in applying for re-appointment he implicitly acknowledged
that he expected his initial appointment would
come to an end at the
beginning of August, as indicated in his contract of employment. To
the extent that his view of his employment
status and the contract
changed, he had no reason to believe that the City shared his view
given that it was proceeding with the
recruitment process for a new
appointment. Nothing the respondent did might have given him false
hope of a resolution. If anything,
the City’s unresponsive
attitude and its firm and negative response when it did finally
revert to him conveyed the opposite.
[26]
Further, Nyanda brought the application at a time when his services
had already been terminated more than 10 days earlier and
then he did
so on unnecessarily short notice. Moreover, to the extent that he
relies heavily on the conversion agreement, he ought
to have realised
that he should have sought to take steps to invoke that remedy before
his fixed term contract was due to expire.
In
Nowalaza,
the
applicants brought the matter to court before the termination of
their current fixed term contracts.
[27]
In the circumstances, I am not satisfied that the applicant was
justified in waiting until 15 August when he launched the
application, quite apart from the unjustifiably short time he gave
the respondent to oppose it, and the application should be dismissed
for lack of urgency.
Merits
[28]
Even if I am wrong on the question of urgency, this application ought
to be dismissed on its merits. To succeed in an application
for
interim relief an must satisfy the court amongst other things that he
at least has a
prima facie
right though open to doubt.
[29]
From the discussion above, the applicant is not entitled to invoke
the remedies in the conversion agreement because it is common
cause
that he did not occupy a level 3 post at the time that agreement was
concluded and that the City’s conversion of the
EMS manager’s
post was based on a policy approach rather than adherence to the
provisions of the conversion agreement. Given
the fact that there may
be legitimate reasons for distinguishing that position from the Chief
Traffic Officer, Nyanda’s claim
that he had a right to have
been made permanent is tenuous at best even on a
prima facie
basis. Insofar as he argues that he had a legitimate expectation of
being made permanent, given that his termination has already
taken
place, the ‘horse has already bolted’ if he sought to
rely on the definition of dismissal in s 186(1)(b)(ii).
Even if he
had brought his application timeously, his basis for having a
legitimate expectation of permanent employment is not
on a par with
the applicants in the
Nowalaza
case. Their expectation was not
merely created by the fact they had occupied the posts which were
going to be advertised, but the
employer itself had previously asked
them to elect if they wished to be permanently employed and had
contemplated permanent employment
for the applicants on the terms and
conditions similar to those in the current fixed term contracts. It
was only when the Auditor
General expressed a different view that the
employer did a
volte face.
In Nyanda’s case, insofar as
he placed store on the terms of his employment contract even if his
appointment was invalid,
that contract made it abundantly clear from
its commencement that he would have to apply for his previous post
like anyone else
if he hoped to extend his appointment beyond its
fixed term. To the extent that he no longer relies on that contract,
his expectation
of indefinite employment cannot be established by
direct reliance on the enforceability of the conversion agreement nor
on any
undertaking or representation previously made by the City.
Rather it is based on a debatable prospect of being entitled to
similar
treatment as Mokola. However, in view of my decision on
urgency, these comments on the merits are in any event strictly
speaking
obiter,
except to the extent they have some relevance
to costs
.
Costs
[30]
Given that the applicant should have brought this application
timeously and that the merits were weak, I see no reason why
costs
should not follow the cause.
Order
[1]
The application is struck of the roll for lack of urgency.
[2]
The applicant must pay the respondent’s costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
A
Bishop instructed by Victor
Nkwashu
Attorneys
RESPONDENT:
M
Naidoo instructed by Moodie
&
Robertson
[1]
64C Executive head of municipal police service
(1) Subject to section 64D, a
municipal council shall appoint a member of the municipal police
service as the executive head thereof.
(2) The executive head shall, subject
to this Act, national standards and the directives of the chief
executive officer of the
municipality, exercise control over the
municipal police service, and shall-
(a) be responsible for
maintaining an impartial, accountable, transparent and efficient
municipal police service;
(b) subject to the
applicable laws, be responsible for the recruitment, appointment,
promotion and transfer of members
of the municipal police service;
(c) ensure that traffic
policing services by the municipality are not prejudicially affected
by the establishment
of the municipal police service;
(d) be responsible for
the discipline of the municipal police service;
(e) either personally or
through a member or members of the municipal police service
designated by him or her for
that purpose, represent the municipal
police service on every local policing co-ordinating committee
established in terms of
section 64K within the area of jurisdiction
of the municipality;
(f) either personally or
through a member or members of the municipal police service
designated by him or her for
that purpose, represent the municipal
police service on every community police forum or subforum
established in terms of section
19 within the area of jurisdiction
of the municipality;
(g) before the end of
each financial year, develop a plan which sets out the priorities
and objectives of the municipal
police service for the following
financial year: Provided that such plan in so far as it relates to
the prevention of crime,
shall be developed in co-operation with the
Service; and
(h) perform such duties
as may from time to time be imposed upon him or her by the chief
executive officer of the
municipality.
[2]
Paragraph
11 of the agreement concerns employees engaged in the future on
fixed term contracts.
[3]
2007 (2) SA 9 (C)
[4]
2014 (4) SA
371
(CC)
[5]
2004(2) SA
81 (SE)
[6]
At 95, para
[34].
[7]
(J1177/2017) [2017] ZALCJHB 234 (15 June 2017)