Mohlomi v Ventersdorp / Tlokwe Municipality and Another (J2910/16) [2017] ZALCJHB 479; [2018] 4 BLLR 355 (LC); (2018) 39 ILJ 1096 (LC) (14 November 2017)

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[2017] ZALCJHB 479
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Mohlomi v Ventersdorp / Tlokwe Municipality and Another (J2910/16) [2017] ZALCJHB 479; [2018] 4 BLLR 355 (LC); (2018) 39 ILJ 1096 (LC) (14 November 2017)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: J 2910 / 16
In
the matter between:
MOLEMO
KGODISANG LAWSON
MOHLOMI

Applicant
and
VENTERSDORP
/ TLOKWE MUNICIPALITY

First Respondent
MEC
FOR LOCAL GOVERNMENT AND HUMAN
SETTLEMENT:
NORTH WEST PROVINCE

Second Respondent
Heard
:
4 May 2017
Delivered
:
14
November
2017
Summary:
Review application – review
application based on principle of legality – considerations
applicable to legality review
– principles considered
Dismissal
– Meaning of dismissal – Employer bringing employment
contract to an end by way of resolution – Constitutes
dismissal
Dismissal
– Allegation of invalid appointment – Act of employer
seeking to terminate employment contract as a result
constituting
dismissal
Nature
of dispute – termination of employment contract of employee by
way of resolution of municipal council – constitutes
a
dismissal as contemplated by the LRA – dispute should be dealt
with by bargaining council under normal dispute resolution
processes
under Chapter VIII of the LRA – review not appropriate
Extraordinary
circumstances – principles considered – no extraordinary
circumstances shown to justify departure from
normal dispute
resolution processes – alternative remedy available
Review
application – counter application by employer – material
delay without explanation – employer non-suited
as a result
Section
56 of the Municipal Systems Act – principles considered –
employer has option to remedy non compliance by way
of terminating
employment contract or litigating – employer choosing
termination route – bound by such choice
Section
56 of the Municipal Systems Act – does not entitle employer to
simply terminate contract – must apply LRA and
follow fair
process in bringing about termination
Review
application – no justification for consideration of review
application – no case made out in counter application
–
both applications dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
The
matter started out life as an urgent application brought by the
applicant on 15 December 2016.  The application came about
as a
result of the termination of the applicant’s employment
contract by the first respondent, by way of a resolution adopted
by
the first respondent’s council. The application was brought in
two parts.  In the first part of the application (‘Part

A’), the applicant sought interim relief, pending the final
determination of the second part of the application (Part B).
In Part
B of the application, the applicant applied to review and set aside
the termination of his employment contract by way of
the resolution
referred to above. This review part of the applicant’s
application was brought in terms of Section 158(1)(h)
of the Labour
Relations Act
[1]
(‘the LRA’).
[2]
The urgent application came before Lallie J
on 20 December 2016, where the parties agreed to a consent order. The
very purpose of
this consent order was to afford the applicant
interim relief pending the final determination of the review
application. In terms
of this consent order, the decision to
terminate the applicant’s services was suspended, with his
salary and benefits to
be paid in the interim, until the review
application was decided.  The interim order also made provision
for the discovery
of the record to be used in the review application,
the filing of further affidavits by the parties, and the filing of
heads of
argument.  The review application was set down for
hearing on 2 March 2017.
[3]
On 2 March 2017, the application came
before Van Niekerk J.  By agreement between the parties, the
application was not decided,
but postponed to 4 May 2017.  Van
Niekerk J granted a consent order, in which provision was made for
the filing of supplementary
affidavits and heads of argument.
In terms of this order by Van Niekerk J, the applicant’s review
application then
came before me for determination on 4 May 2017.
[4]
However, and on 14 March 2017, the first
respondent then filed a counter application.  In terms of this
counter application,
the first respondent sought an order that the
resolution of the Tlokwe City Council (the predecessor in title to
the current first
respondent) of 13 December 2013 to appoint the
applicant into the position of manager: housing and planning, be
reviewed and set
aside on the basis that this was unlawful. Needless
to say, this application was opposed by the applicant.  This
counter application
also came before me on 4 May 2017.
[5]
I
will decide this matter by first summarizing the relevant background
facts which gave rise to both these resolutions, being the
one to
appoint the applicant, and then the one to terminate the applicant’s
services.  As these are motion proceedings,
and insofar as there
exists a factual dispute between the parties, I shall resolve such
dispute based on the principle as enunciated
in
Plascon
Evans Paints v Van Riebeeck Paints
[2]
.
The
relevant facts
[6]
The applicant was appointed by the Tlokwe
City Council in November 2007 as its manager: housing and planning.
The appointment
was on a five year fixed term contract, terminating
end of October 2012.
[7]
In 2012, the Tlokwe City Council then
advertised the position of manager: housing and planning (‘the
position’) which
needed to be filled upon the expiry of the
applicant’s fixed term contract.  In terms of the
advertisement, one of the
qualifying criteria to be considered for
the position was an appropriate bachelors’ degree or equivalent
qualification, and
other equivalent tertiary qualification coupled
with relevant skills.
[8]
The applicant again applied for this
position on 30 August 2012, along with a number of other incumbents.
The applicant was amongst
those incumbents that were shortlisted, and
interviewed for the position.
[9]
Following the interviews, the interview
panel submitted its recommendations for appointment in a report dated
19 November 2012.
The first preferred candidate for appointment in
terms of these recommendations was Mr M Ralukake, and second
preferred candidate
was Mr M Musetha. The applicant was not
recommended for appointment.
[10]
On 29 January 2013, the Tlokwe City Council
then resolved that Mr Ralukake be appointed in the position, and
should he decline to
be so appointed, Mr Musetha be appointed.
Subsequently, both these candidates declined the position, and on 13
April 2013, the
Tlokwe City Council resolved that all the other
candidates not recommended for appointment be re-interviewed again.
This would
include the applicant.
[11]
The Tlokwe City Council then did an about
turn on the resolution of 13 April 2013 with regard to the
re-interviewing of all candidates.
Instead, it was resolved on 2 July
2013 that the scoring sheets from the original interviews will be
used to make a recommendation
for appointment in the position.
The applicant was then recommended for appointment on this basis. It
may be mentioned that
the applicant had the second highest score in
the interviews, even more than Mr Musetha.
[12]
On 13 December 2013, the Tlokwe City
Council then resolved that the applicant be appointed in the
position, with effect from 13
December 2013, and on a fixed term
contract of five years. On 20 December 2013, the applicant was then
issued with an appointment
letter.  The applicant accepted the
appointment, and commenced service in the position.
[13]
The
position of manager: housing and planning is a position as
contemplated by Section 56 of the Municipal Systems Act (‘the

Systems Act’)
[3]
.
As such, the appointment of the applicant required the conclusion of
a written contract of employment in line with the provisions
of such
Act, which contract was then concluded between the applicant and the
Tlokwe City Council on 16 January 2014.  In terms
of this
employment contract, it was also stipulated that the applicant’s
appointment to the position was for a period of
five years,
commencing 13 December 2013. The employment contract also provides,
in clause 10 thereof, for the termination of the
agreement. This
includes, in clause 10.3.1, termination at the instance of the Tlokwe
City Council with immediate effect, for any
reason recognized by law
as sufficient. Clause 10.2 provides that:
[4]
‘
The
Employer will be entitled to summarily terminate the Employee
employment contract after substantiation and on any sufficient
reason
recognised by law …
‘
(sic)
[14]
In the course of 2014, a former councillor
of the Tlokwe City Council, one Mr J Johnson, lodged a complaint with
the Municipal Manager
of the Tlokwe City Council about the
appointment of the applicant to the position.  It was contended
that the applicant did
not possess the requisite prescribed
qualifications for the position.  Mr Johnson elevated these
complaints to the second
respondent (hereinafter referred to as ‘the
MEC’’), and to the national Minister of Corporate
Governance and
Traditional Affairs. On 10 December 2014, the Tlokwe
City Council then provided the MEC and the Minister with all the
information
relating to the applicant’s appointment.
[15]
Having considered all the information, and
on 29 June 2015, the MEC sent a letter to the Executive Mayor of the
Tlokwe City Council.
In this letter, the MEC recorded that the
appointment of the applicant appeared to be irregular, because he was
not on the recommended
list of appointees emanating from the original
interview panel, and there was non-compliance with circular 19.
The MEC stated
that the appointment was thus not endorsed in terms of
the Systems Act, and requested that the Executive Mayor to
immediately take
necessary remedial action, so as to ensure
compliance with the Systems Act.   But on the evidence, it
seems nothing further
was done until much later.
[16]
The
Tlokwe City Council was then disestablished by virtue of a notice
published in terms of Section 12 of the Local Government:
Municipal
Structures Act
[5]
,
dated 22 June 2016. This was part and parcel of a restructuring that
saw the amalgamation of the Tlokwe and the Ventersdorp
Municipalities,
into one Municipality called NW405 (Ventersdorp /
Tlokwe Local Municipality), the current first respondent.  In
terms of clause
7(1)(b) of this notice, all the employees of the
former two municipalities were transferred to the newly established
first respondent,
on their same terms and conditions of employment.
[17]
The MEC issued a notice on 1 August 2016,
pursuant to the Section 12 notice referred to above, recording that
the amalgamation would
take effect on 3 August 2016, and that with
effect from that date, the Tlokwe and the Ventersdorp Municipal
Councils would cease
to exist.  The MEC, in terms of this notice
of 1 August 2016, then appointed a number of individuals into
management positions
in the newly established first respondent, in
acting capacities, until such time as the new Municipal Council was
constituted.
In terms of this notice, the applicant would assume the
position of acting director: housing and planning. This appointment
was
confirmed by the first respondent’s executive mayor on 4
August 2016.
[18]
Only after the establishment of the Council
of the first respondent, and thus more than a year later, the issue
as raised by the
letter of the MEC of 29 June 2015 then served before
the Council. In a meeting of the Council on 25 August 2016, it was
resolved
that legal opinion would be sought with regard to the
validity of the applicant’s appointment, and if the appointment
was
considered to be illegal, what could competently be done about
it.
[19]
Following the obtaining of legal opinion,
the matter served before the first respondent’s council again.
On 6 December 2016,
a resolution was adopted that the applicant’s
contract of employment be terminated with immediate effect, which was
according
to it in line with the directive of the MEC of 29 June
2015. On 7 December 2016, the first respondent was then issued with a
notice
of termination of his contract with immediate effect, and with
it the termination of his services with the first respondent as from

6 December 2016.
[20]
It is this termination of the contract
between the applicant and the first respondent, and the consequent
termination of the applicant’s
employment with the first
respondent that has given rise to the matter now before me.
Crystalized down to its pure form, the simple
reason for the
termination of the applicant’s contract by and employment with
the first respondent, was because the first
respondent considered the
applicant’s appointment into the position on 13 December 2013
to be in contravention of the Systems
Act, as a result of the
applicant not having the requisite qualifications for the position
when so appointed.
[21]
As stated above, there are now two review
applications before me, both premised on the same factual matrix, but
each applying to
a different resolution of the first respondent (and
its predecessor the Tlokwe City Council).  On the one hand, the
applicant
attacks the resolution of 6 December 2016.  And on the
other hand, the first respondent attacks the resolution of 13
December
2013.  I will refer in this judgment, for the sake of
convenience, to these two resolutions as the ‘2013 resolution’

and the ‘2016 resolution’.
[22]
In will now turn to deciding these review
applications before me, by first setting out the legal principles
applicable to deciding
review applications such as these.
Review
principles
[23]
Section 158(1)(h) provides as follows:
‘
The
Labour Court may- … review any decision taken or any act
performed by the State in its capacity as employer, on such
grounds
as are permissible in law.
’
[24]
The
applicant has specifically relied on Section 158(1)(h) in his
founding affidavit.  Although it is not pertinently so stated
in
the first respondent’s counter application, it is clear in my
mind that the first respondent relies on this provision
as well.
Section 158(1)(h) indeed contemplates a review application.  The
applicable basis of a review application in
terms of Section
158(1)(h) has been described in
Hendricks
v Overstrand Municipality and Another
[6]
,
as follows:
‘
In
sum therefore, the Labour Court has the power under s 158(1)
(h)
to review the decision … on (i) the grounds listed in PAJA,
provided the decision constitutes administrative action; (ii)
in
terms of the common law in relation to domestic or contractual
disciplinary proceedings; or (iii) in accordance with the
requirements
of the constitutional principle of legality, such being
grounds 'permissible in law'
.
[25]
Following
on, the Court in
Merafong
City Local Municipality v SA Municipal Workers Union and Another
[7]
said:
‘
The
Labour Court is not precluded by the LRA from reviewing the decisions
and acts contemplated in s 158(1)(h)
.
It has the power (and jurisdiction) to review them on any grounds
'permissible in law'.  Permissible grounds in law would
include
the constitutional grounds of legality and rationality and, if they
constitute 'administrative action', on the grounds
that are
stipulated in PAJA …
’
[26]
Neither
the applicant nor the first respondent have relied on PAJA
[8]
to establish any of their grounds of review in this case, and
accordingly, I shall have no further regard to the provisions of
that
statute.  Both the applicant and the first respondent have
squarely founded their respective review applications on the

principle of legality, which, as set out above, is indeed
contemplated as a proper basis for a review application under Section

158(1)(h) of the LRA.  Dealing specifically with the concept of
‘legality’, the Court in
Hendricks
[9]
said:
‘…
.
Legality includes a requirement of rationality. It is a requirement
of the rule of law that the exercise of public power by the
executive
and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power
was given,
otherwise they are in effect arbitrary and inconsistent with the rule
of law.
’
[27]
The
Court in
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[10]
also specifically dealt with the meaning of ‘legality’,
in the context of a review application under Section 158(1)(h)
of the
LRA, and held:
‘…
The
principle of legality is applicable to all exercises of public power
and not only to 'administrative action' as defined in PAJA.
It
requires that all exercises of public power are, at a minimum, lawful
and rational. …
’
[28]
In
MEC
for the Department of Health, Western Cape v Weder;
MEC for the
Department of Health, Western Cape v Democratic Nursing Association
of SA on behalf of Mangena
[11]
the Court held that the principle of legality had developed over the
past decade, to the extent that a parallel system of review
for
actions which falls outside of the strict definition of
administrative action, had developed.  Having so held, the Court

then proceeded to set out this development as follows:
[12]
‘…
Public
functionaries are required to act within the powers granted to them
by law. See
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council & others
[1998] ZACC 17
;
1999
(1) SA 374
(CC)
at
para 58, furthermore, see the seminal judgment in
Pharmaceutical
Manufacturers Association of SA & another
:
In
re Ex parte President of the Republic of SA & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC)
at
para 85, where the court laid down the core element of legality as
follows:
'It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this
requirement.
'
The
Court in
Weder
[13]
then proceeded to consider this component of rationality as part of
the legality enquiry, and held:
‘
In
later judgments the court has developed this concept of rationality
requiring the executive or public functionaries to exercise
their
power for the specific purposes for which they were granted so that
they cannot act arbitrarily, for no other purpose or
an ulterior
motive. See
Gauteng
Gambling Board & another v MEC for Economic Development,
Gauteng
2013
(5) SA 24
(SCA)
at
para 47. Furthermore, in
Democratic
Alliance v President of the Republic of SA & others
2013
(1) SA 248
(CC)
at
para 39 Yacoob ADCJ held:
'If
in the circumstances of a case, there is a failure to take into
account relevant material that failure would constitute part
of the
means to achieve the purpose for which the power was conferred. And
if the failure had an impact on the rationality of the
entire
process, then the final decision may be rendered irrational and
invalid by the irrationality of the process as a whole.'
’
[29]
In summary therefore, where a litigating
party seeks to challenge a decision in the context of the public
service employment environment,
on the basis of a review application
under Section 158(1)(h) of the LRA, founded on the constitutional
principle of legality, the
party seeking to review such a decision
must show that the decision failed to meet the following essential
requirements:
29.1    The decision
was rationally connected to the purpose for which the power was given
to it, thus meaning that
the decision would not be considered to be
arbitrary;
29.2    The decision
accounted for all the relevant facts informing the decision, to the
extent that the decision
made can be said to be rational;
29.3    The process
giving rise to the decision was lawful and fair; and
29.4    The decision
itself was lawful, meaning that it is not a decision that falls
outside the scope of the power
afforded to the functionary.
Thus,
should any applicant for review succeed in showing that any one of
these requirements have not been satisfied, then the decision
taken
would be reviewable in terms of Section 158(1)(h) of the LRA, based
on the principle of legality.
[30]
Next,
it is appropriate to set out the grounds of review as articulated by
the parties, as this Court is only required to decide
such a review
application on the basis of the grounds as made out in the founding
affidavit, and supplementary affidavits.
[14]
Turning first to the review grounds made out by the applicant, these
all relate to the 2016 resolution, and are:
30.1    The decision
was invalid because the first respondent erroneously regarded the
applicant’s appointment
as null and void in terms of Section 56
of the Systems Act;
30.2    The decision
was unlawful because the first respondent did not follow any
disciplinary procedure before taking
the decision;
30.3    The first
respondent relied on an investigation by the second respondent, but
the applicant was never consulted
in the course of this investigation
nor afforded an opportunity to make representations in this regard;
30.4    The first
respondent misconstrued the second respondent’s recommendation
where it came to what was
meant by taking remedial action;
30.5    The failure to
re-advertise the position did not render the applicant’s
appointment invalid, and there
was no obligation on the first
respondent to re-advertise the post.
[31]
The first respondent’s review grounds
all relate to the 2013 resolution, and are:
31.1
The decision to appoint the applicant was
unlawful and irregular because the applicant did not possess the
required minimum qualifications
to be appointed in the position.
31.2
The applicant misrepresented, at the time,
that he had the necessary qualifications for the position.
[32]
However, and before deciding whether any of
these grounds of review have substance, l must first decide whether
it is indeed appropriate
to entertain these review applications, on
these grounds, which I will now turn to.
Is
a Section 158(1)(h) review appropriate in all circumstances?
[33]
There
is no doubt that as a general proposition, the Labour Court has the
jurisdiction, in terms of Section 158(1)(h) of the LRA,
to consider
both the applicant’s application to review and set aside the
2016 resolution, and the first respondent’s
application to
review and set aside the 2013 resolution.  The Court in
Gcaba
v Minister for Safety and Security and Others
[15]
said that jurisdiction
means:
‘…
the
power or competence of a court to hear and determine an issue between
parties …’
And
in
Merafong
City Local Municipality
[16]
the
Court held:
‘
Section
158(1)(h) of the LRA refers to a jurisdictional power of the
Labour Court. It specifically provides that the Labour
Court 'may
review any decision taken or any act performed by the State'. The
only way the Labour Court is able to review is by
hearing and
determining an application for review of the acts and/or
decisions contemplated in s 158(1)(h). That section
should be
read as not only conferring a power, but also jurisdiction upon the
Labour Court.
’
[34]
The enquiry whether or not to entertain
such a review application however does not stop just because it may
be accepted that the
Labour Court in general terms has jurisdiction
to do so. Simply put, the fact that the Labour Court has jurisdiction
/ power does
not mean that the Court should exercise this power.
In other words, and even though the Court may have jurisdiction to
consider
such a review under Section 158(1)(h), it does not mean that
it is appropriate for it to exercise such power, especially where
there are other specifically prescribed alternative means by way of
which the issue can be resolved.
[35]
Skweyiya
J in
Chirwa
v Transnet Ltd and Others
[17]
dealt with what was in essence an unfair dismissal dispute based on
poor work performance, but which dismissal was challenged by
the
employee party on the basis of a case of the breach of her right to
administrative justice, which is in essence a challenge
based on
legality.  After accepting that Chapter VIII of the LRA
specifically deals with dismissals, Skweyiya J then said:
[18]
‘…
The
LRA is the primary source in matters concerning allegations by
employees of unfair dismissal and unfair labour practice irrespective

of who the employer is, and includes the state and its organs as
employers.
Ms Chirwa's case is based on an
allegation of an unfair dismissal for alleged poor work performance.
The LRA specifically legislates
the requirements in respect of
disciplinary enquiries and provides guidelines in cases of dismissal
for poor work performance.
She had access to the procedures,
institutions and remedies specifically designed to address the
alleged procedural unfairness
in the process of effecting her
dismissal. She was, in my view, not at liberty to relegate the finely
tuned dispute-resolution
structures created by the LRA. If this is
allowed, a dual system of law would fester in cases of dismissal of
employees by employers,
one applicable in civil courts and the other
applicable in the forums and mechanisms established by the LRA.’
[36]
The
Constitutional Court in
Gcaba
[19]
followed suit, with Van Der Westhuizen J applying the
dicta
in
Chirwa
as follows:
‘
Once
a set of carefully crafted rules and structures has been created for
the effective and speedy resolution of disputes and protection
of
rights in a particular area of law, it is preferable to use that
particular system. This was emphasized in
Chirwa
by both Skweyiya J and Ngcobo J. If litigants are at liberty to
relegate the finely tuned dispute-resolution structures created
by
the LRA, a dual system of law could fester in cases of dismissal of
employees.
’
[37]
The
Labour Appeal Court in
Hendricks
[20]
then specifically applied the aforesaid
dicta
in both
Chirwa
and
Gcaba
,
and concluded:
‘
These
dicta of the Constitutional Court support the general proposition
that public sector employees aggrieved by dismissal or unfair
labour
practices …  should ordinarily pursue the remedies
available in ss 191 and 193 of the LRA, as mandated and circumscribed

by s 23 of the Constitution. …
’
[38]
Myburgh
AJ in
Magoda
v Director-General of Rural Development and Land Reform and
Another
[21]
recently applied all these principles as follows:
‘…
insofar
as the LRA provides a remedy to address the applicant’s
complaints … I do not consider a review in terms of
section
158(1)(h) to be permissible – otherwise a separate legal
framework would apply to public and private sector employees.

As held by the LAC in De Bruyn, the LRA may oust the section
158(1)(h) review jurisdiction of this court, where, for example, the

dispute involves the interpretation or application of a collective
agreement, which stands to be arbitrated by the CCMA. The LAC
went on
to find that a section 158(1)(h) review was not permissible on what
appears to be a wider basis: “[i]t follows that
the appellant
is confined to its remedy in terms of section  24 of the LRA and
it may not, instead, seek to review the respondent's
decision in the
Labour Court in terms of section 158(1)(h).”  Along
similar lines, the LAC indicated in Hendricks that
section 158(1)(h)
reviews should be confined to legitimate challenges where there is no
other remedy available under the LRA. As
Murphy AJA went on to put
it, “[i]f a cause of action meets the definitional requirements
of an unfair labour practice or
an unfair dismissal, the dictates of
constitutional and judicial policy mandate that the dispute be
processed by the system established
by the LRA for [its] resolution”.
This court has also held, on more than one occasion, that where
another remedy exists under
the LRA, a section 158(1)(h) review is
not permissible. …
’
[39]
What
all the above means is that the LRA has a very unique scheme where it
comes to resolving disputes that arise in the scope of
the employment
relationship.  This includes such disputes involving the state
as employer.
[22]
The LRA creates a right to a fair dismissal and the right to a fair
labour practice, and then provides for a prescribed dispute

resolution process to give effect to such rights.
[23]
At the heart of this dispute resolution process lies the notion of
fairness as between both employer and employee.
This notion of
fairness is not compatible with concepts such as unlawfulness or
illegality or invalidity.  At a level of policy,
this Court
should always strive to give primacy to this prescribed dispute
resolution processes of the LRA and the notions underlying
it. These
kind of policy considerations were evidenced in the judgment of the
Constitutional Court in
Steenkamp
and Others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
[24]
where the Court dealt with the notion of challenging dismissals under
the LRA on the basis of the dismissal being unlawful or invalid.

Zondo J (as he then was), writing for the majority, held:
[25]
‘
I
think that the rationale for the policy decision to exclude unlawful
or invalid dismissals under the LRA was that through the
LRA the
legislature sought to create a dispensation that would be fair to
both employers and employees, having regard to all the
circumstances,
including the power imbalance between them. In this regard a
declaration of invalidity is based on a 'winner takes
all' approach.
The fairness which forms the foundation of the LRA has sufficient
flexibility built into it to enable a court or
arbitrator to do
justice between employer and employee.
’
Having
so held, the learned Judge then reflected on the dispute resolution
process envisaged by the LRA, and said:
[26]
‘
The
scheme of the LRA is that, if it creates a right, it also creates
processes or procedures for the enforcement of that right,
a
dispute-resolution procedure for disputes about the infringement of
that right, specifies the fora in which that right must be
enforced
and specifies the remedies available for a breach of that right.
’
[40]
Therefore,
and when this Court is confronted with an application seeking to
challenge decisions in the context of the employment
relationship in
the public service, this Court is duty bound to ascertain whether the
decision taken is one that would normally
be susceptible to challenge
under the auspices of what is defined as a dismissal or unfair labour
practice in Chapter VIII of the
LRA, irrespective of the fact that
the review applicant may label it as a legality challenge.
[27]
Thus, the classification of the dispute as one of an infringement of
a Constitutional principle of legality and a challenge
being launched
on that basis, must be carefully scrutinized, so as to ascertain if
it is a dispute capable of resolution under
the proper prescribed
processes under Chapter VIII of the LRA in the forum properly and
specifically designated to deal with such
a dispute.  As said by
Ngcobo J in
Chirwa
:
[28]
‘…
It
could not have been the intention of the legislature to allow an
employee to raise what is essentially a labour dispute under
the LRA
as a constitutional issue under the provisions of s 157(2). To hold
otherwise would frustrate the primary objects of the
LRA and permit
an astute litigant to bypass the dispute-resolution provisions of the
LRA. This would inevitably give rise to forum
shopping simply because
it is convenient to do so or as the applicant alleges, convenient in
this case 'for practical considerations'.
What is in essence a labour
dispute as envisaged in the LRA should not be labelled a violation of
a constitutional right in the
Bill of Rights simply because the
issues raised could also support a conclusion that the conduct of the
employer amounts to a violation
of a right entrenched in the
Constitution.
’
[41]
Of
proper practical illustration of this point is the following
dictum
from the judgment in
Public
Servants Association of SA on behalf of de Bruyn v Minister of Safety
and Security and Another
[29]
:
‘
Therefore,
the court a quo (although of the opinion that the application before
it was in terms of s 158(1)
(g)
of the LRA) correctly proceeded to consider whether the LRA required
the kind of dispute which existed between the appellant and
the
respondent to be resolved through arbitration. The court concluded
that leave … is governed by the provisions of Resolution
5 of
2001 of the PSCBC, which is a binding collective bargaining
agreement. This means that the dispute between the parties was

required to be submitted to arbitration as it concerned the
application and/or interpretation of the provisions of the PSCBC
resolution
…
’
[42]
It is
of course undoubtedly correct that jurisdiction of the Court is
determined by the case as pleaded an applicant.
[30]
Accordingly, a pleaded case of infringement of the right to legality
will clothe the Court with jurisdiction to consider
the case.
This is indeed what both the applicant and the first respondent did.
But opening the door to considering
the case does not mean that the
case should actually be decided on the merits.  That is a
different, and further determination.
The Court can still
decline to decide the matter on the basis that the dispute should
rather be dealt with in terms of the dispute
resolution processes
under Chapter VIII of the LRA, and this entails deciding what the
true character of the dispute is, no matter
what it may be labelled
as by a party.  In
Zungu
v Premier,  Province of Kwazulu-Natal and Another
[31]
the Court said:
‘
Accordingly,
the first exercise in any proceedings is to read, as in this case,
the allegations in the affidavits, and make the
determination. It is
not, primarily, the form of relief sought, but rather the necessary
averments to demonstrate the ‘cause
of action’ that
determines the ‘character’ of the dispute, although the
form of the relief, if it is consonant
with the cause of action, will
point in the same direction.
’
And
in
Aucamp
v SA Revenue Service
[32]
it was held:
‘…
it
is the duty of the Labour Court to determine the true nature of the
issue in dispute between the parties before court, no matter
how an
applicant may choose to label or describe the dispute. The court is
not bound by the description of the dispute as may be
articulated by
an applicant. …
’
The
Court in
Aucamp
also applied the following
dictum
from the judgment in
CUSA
v Tao Ying Metal Industries and Others
[33]
where the
Court held:
‘…
The
labels that the parties attach to a dispute cannot change its
underlying nature …
’
[43]
To
describe it as simply as possible, the fact that the Labour Court has
the power or competence to do something, does not mean
that it
should, especially where that something is in reality an issue that
should be dealt with under the proper prescribed dispute
resolution
processes under the LRA, once the real and underlying nature of the
dispute has been determined.  This was appreciated
by the Court
in
de
Bruyn
[34]
where it was held as follows:
‘
But
it does not follow that because the remedy of judicial review may
still exist for public servants that the Labour Court will
entertain
an application to review 'any act performed by the State in its
capacity as employer' as a matter of course. Recourse
to review
proceedings, in terms of s 158(1)(h), takes place in the context of
the law relating to judicial review as well as the
other elements of
the system of dispute resolution which the LRA has put in place …
’
[44]
One
final consideration remains in this respect.  This is answering
the question when should the Labour Court nonetheless exercise
its
powers under Section 158(1)(h) of the LRA, in place of the prescribed
dispute resolution processes under the LRA?  The
answer is
simple – under exceptional circumstances only.  In dealing
with an application to interdict disciplinary proceedings
against an
employee in the public service, the Court in
Booysen
v Minister of Safety and Security and Others
[35]
held that:
‘…
.
the Labour Court
has jurisdiction to interdict any unfair conduct including
disciplinary action. However such an intervention should
be exercised
in
exceptional cases
.
It is not appropriate to set out the test. It should be left to the
discretion of the Labour Court to exercise such powers having
regard
to the facts of each case. Among the factors to be considered would
in my view be
whether
failure to intervene would lead to grave injustice or whether justice
might be attained by other means
.
The list is not exhaustive.
’ (emphasis added)
[45]
I
n
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[36]
the Court equally confirmed the jurisdiction of the Labour Court to
entertain an application to uplift a suspension of an employee
in the
public service, but then added:
[37]
‘
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA. The
respondent in this case instead sought a declaratory order
from the
Labour Court in terms of s 158(1)
(a)
(iv)
of the LRA to the effect that the suspension was unfair, unlawful and
unconstitutional. A declaratory order will normally be
regarded as
inappropriate where the applicant has access to alternative remedies,
such as those available under the unfair labour
practice
jurisdiction. 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
…’
(emphasis
added)
Applying
the aforesaid dictum in
Gradwell
,
the Court in
Madzonga
v Mobile Telephone Networks (Pty) Ltd
[38]
held:
‘…
In
my view the issue is actually more than just the existence of an
alternative remedy.  The simple reason for this is that
the
alternative remedy is not just an available alternative remedy but a
statutory prescribed alternative remedy.  This is
where the
issue of competence comes in.  The primary consideration must
always be that proper effect be given to the clear
terms of the
statute, and for the Labour Court to entertain this issue would be
contrary to the dispute resolution process clearly
prescribed by such
statute which should only be done with great circumspection and
reluctance.  In my view, and as a matter
of principle, the
Labour Court should only entertain urgent applications to declare
suspensions unfair or unlawful or invalid on
the basis of interim
relief pending the final determination of the issue in the proper
prescribed forum, and even then compelling
considerations of urgency
and exceptional circumstances have to be shown by an applicant for
such relief.  Whether or not
compelling considerations of
urgency and exceptional circumstances exist is a call the Court has
to make on a case by case basis
on the facts of the matter.
’
[46]
What
thus clearly appears to be the central theme guiding the Labour Court
in deciding whether or not to exercise the power afforded
to the
Court in terms of Section 158(1)(h) of the LRA, is the availability
of a prescribed alternative process and accompanying
remedies, and in
particular the unfair dismissal and unfair labour practice dispute
resolution process and remedies under Chapter
VIII of the LRA.
Apposite, in my view, is the following
dictum
of Skweyiya J in
Chirwa
:
[39]
‘
It
is my view that the existence of a purpose-built employment framework
in the form of the LRA and associated legislation infers
that labour
processes and forums should take precedence over non-purpose-built
processes and forums in situations involving employment
related
matters. At the least, litigation in terms of the LRA should be seen
as the more appropriate route to pursue. Where an
alternative cause
of action can be sustained in matters arising out of an employment
relationship, in which the employee alleges
unfair dismissal or an
unfair labour practice by the employer, it is in the first instance
through the mechanisms established by
the LRA that the employee
should pursue her or his claims.
’
[47]
The
existence of exceptional circumstances justifying immediate
intervention must be set out in the applicant’s founding
affidavit, with proper motivation for the contention and sufficient
particularity, and a proper case in this regard must be made
out in
line with legal principle.  In this regard the Court in
Minister
of Labour and Another v Public Servants Association of SA and
Another
[40]
held:
‘
Features
that serve to distinguish the exception from the general are, inter
alia, the source and nature of the action, whether
the action
involves, or is closely related to the formulation of policy, or to
the initiation of legislation and/or whether it
has to do with the
implementation of legislation. In
De
Villiers
the Labour Court added the existence of alternative remedies as
another factor to be considered, due to the importance attached
to
that aspect in both the
Chirwa
and the
Gcaba
decisions. …
’
[48]
It is
useful to refer to some examples where such exceptional circumstances
were found to exist.  One of these is in fact the
judgment in
Minister
of Labour
[41]
itself which dealt with the revocation of an employee’s
designation of Registrar of Labour Relations in terms of the
LRA,
[42]
and his resultant removal from that position, for reasons that were
entirely irrational and invalid and where there in reality
was no
alternative remedy.  Another example is the well-known matter of
Solidarity
and Others v SA Broadcasting Corporation
[43]
which concerned the dismissal and victimization of reporters for
being critical of policy decisions by the SABC as a public
broadcaster,
which conduct violated the Constitutional duties of the
employees, and even infringed on the right of the public to be
properly
informed.
[49]
Turning
then to the instances where no alternative remedies exist, thus
justifying an applicant party to resort to Section 158(1)(h),
there
is no better example than the issue of deemed terminations of
employment under Section 17 of the PSA.
[44]
In these cases, and because of a statutory automatic termination of
employment in instances of absence of employees from
the workplace in
the public service, there is no opportunity for such an employee to
resort to the dispute resolution processes
under the LRA, as there
exists no dismissal.  It has thus been consistently recognized
that in these cases, this termination
of employment can be challenged
on review to the Labour Court under Section 158(1)(h) of the LRA,
where it infringes on the principle
of legality.
[45]
[50]
From
the perspective of the employer in the public service, Section
158(1)(h) can be used for the purposes of reviewing decisions
taken
by functionaries which can be said to infringe on the principle of
legality, and which can  be seen to be unreasonable,
irrational
or procedurally unfair.  This is most often found in cases where
the state as employer seeks to review and set
aside the decisions by
its own appointed disciplinary hearing chairpersons when acquitting
or deciding not to dismiss employees.
It is in fact such an
instance that came before the Court in
Hendricks
,
and the Court held:
[46]
‘
The
underlying guiding rationale of the ratio decidendi in
Gcaba
and
Chirwa
is that once a set of carefully crafted rules and structures has been
created for the effective and speedy resolution of disputes
and
protection of rights in a particular area of law, it is preferable to
use that particular system. In other words, and in practical
terms,
remedies for unfair dismissal and unfair labour practices contained
in the LRA should be used by aggrieved employees rather
than seeking
review under PAJA. The ratio cannot justifiably be extended to deny
an employer a remedy against an unreasonable,
irrational or
procedurally unfair determination by a presiding officer exercising
delegated authority over discipline. The remedies
available to an
aggrieved employee under the unfair dismissal and labour practice
jurisdiction of the LRA are not available to
employers. … The
only remedy available to the employer aggrieved by the disciplinary
sanction imposed by an independent
presiding officer is the right to
seek administrative law review; and s 158(1)
(h)
of the LRA empowers the Labour Court to hear and determine the
review. To hold otherwise is to deny the employer any remedy at
all
against an abuse of authority by the presiding officer. …
’
And
further in
Ntshangase
v MEC for Finance: KwaZulu-Natal and Another
[47]
,
it was said:
‘…
All
actions and/or decisions taken pursuant to the employment
relationship between the second respondent and its employees must
be
fair and must account for all the relevant facts put before the
presiding officer. Where such an act or decision fails to take

account of all the relevant facts and is manifestly unfair to the
employer, he/she is entitled to take such decision on review.

Moreover, the second respondent has a duty to ensure an accountable
public administration in accordance with ss 195 and 197 of
the
Constitution. …
’
[51]
To sum up
in
casu
: This Court has jurisdiction to
entertain the applicant’s and the first respondent’s
review applications.  But
whether it is appropriate to exercise
this jurisdiction and consider these applications is dependent upon
deciding, firstly, whether
the issue in dispute is in reality one
relating to employment that could and should be resolved in terms of
the dispute resolution
processes under Chapter VIII of the LRA.
If the issue in dispute is such a kind of dispute, then as a matter
of general principle
this Court should decline to entertain the
applications. Secondly, and despite the fact that the issue in
dispute is in reality
one that should be resolved under Chapter VIII
of the LRA, it must be decided whether this Court, as a matter of
exception, should
still entertain the application on the merits
because of the existence of extraordinary circumstances justifying
this.  I
will now proceed to decide the application of the
applicant and the counter application of the first respondent,
applying these
two considerations.
Evaluation:
The applicant’s application
[52]
There can be no doubt that what the
applicant is challenging
in casu
is the termination of his employment with the first respondent.
He says that this termination is unlawful and infringes on
the
principle of legality.  There can be no doubt that on 6 December
2016, the first respondent decided to terminate the applicant’s

employment, and then implemented that decision on 7 December 2016.
[53]
The applicant was clearly an employee as
contemplated by the LRA.  He had concluded an employment
contract with the first respondent,
and was rendering services under
that contract. He was appointed and the contract was concluded
pursuant to the 2013 resolution.
The first respondent has made
it clear in its answering affidavit that when it brought about the
termination of employment of the
applicant, this was never done on
the basis that it considered the appointment of the applicant
pursuant to the 2013 resolution
and the employment contract concluded
as a result thereof, to be null and void.  The first respondent
on its own version decided
to bring the applicant’s employment
contract to an end for two reasons, being that the applicant did not
possess the required
qualifications for the position and that he
misrepresented that he had these qualifications.
[54]
As a
matter of common sense and logic, such a decision by an employer for
such a reason would be seen to be a dismissal.  Surely
it cannot
be different for an employee in the public sector?  After all,
the same law applies to everyone.  As said in
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[48]
:
‘
In
Chirwa
,
this court held:
'The
LRA does not differentiate between the state and its organs as an
employer, and any other employer. Thus, it must be concluded
that the
state and other employers should be treated in similar fashion.’
’
[55]
Section
186(1)(a) of the LRA
inter
alia
defines dismissal as:
’
Dismissal
means
that …. an employer has terminated employment with or without
notice’
.
In
National
Union of Leather Workers v Barnard NO and Anothe
r
[49]
the Court dealt with Section 186(1)(a) prior to the 2015 amendments
of the LRA,
[50]
and held as follows:
‘
The
key issue in the interpretation of the phrase 'an employer has
terminated the contract of employment with or without notice'
is
whether the employer has engaged in an act which brings the contract
of employment to an end in a manner recognized as
valid by the
law.
’
[56]
The
meaning of dismissal in terms of Section 186(1)(a) was also
considered in
Ouwehand
v Hout Bay Fishing Industries
[51]
where the Court said:
‘
...
This formulation would appear to contemplate that the employer party
to a contract of employment undertakes an action that leads
to the
termination of the contract. In other words, some initiative
undertaken by the employer must be established, which has the

consequence of terminating the contract, whether or not the employer
has given notice of an intention to do so.
It
is accordingly incumbent upon an employee to establish on a balance
of probabilities,…some overt act by the employer that
is the
proximate cause of the termination of employment. …
’
And
in
Chemical
Energy Paper Printing Wood and Allied Workers Union v Astrapak
Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics
[52]
the Court held:
‘…
the
applicant must prove that the respondent has taken some initiative to
terminate the contract, and that the respondent's action
has caused
the termination.
’
[57]
It
does not matter what kind of label was attached to the act of
termination,
considering
the following
dictum
in
Marneweck
v SEESA Ltd
[53]
where the
Court said the following:
‘…
the
enquiry into whether or not there is a dismissal goes beyond
investigating whether the employer used the word 'dismissal' in

terminating the employment relationship with the employee. In other
words it is not the label placed on the termination that determined

whether or not there was a dismissal.
’
[58]
In
Uthukela
District Municipality v Khoza and Others
[54]
the Court dealt with a situation where a manager in the municipality
(incidentally also a Section 56 manager such as the applicant)
had
simply been given written notice by the mayor that his employment
contract had been ‘abolished’ following a council

resolution.  The Court held:
[55]
‘
There
can be no doubt that it was the applicant that brought the employment
contract of the first respondent to an end. If it was
not for the
council meeting, the resolution adopted and the written notice to the
first respondent, all on 6 June 2012, the employment
contract would
have endured. It simply does not matter whether the council viewed
the termination as properly motivated by invalidity
or voidness in
terms of the Systems Act, as it still remained a dismissal. …
In short, where the conduct of an employer
brings about the
termination of the contract of employment, whatever the motivation
for this conduct may be, it has to be considered
to be a dismissal of
the employee as contemplated by the LRA. The simple question that
must be asked is whether, was it not for
the conduct of the employer,
the employment contract would have endured. If the answer is yes,
then there has to be a dismissal.
It is important to cast the
dismissal net as wide as possible, because it is an imperative in
terms of the LRA and Constitution
that terminations of employment, as
far as possible, be tested against the fundamental principle of
fairness.
’
[59]
Based on the above, there can be no doubt
that the applicant was dismissed, as contemplated by Section
186(1)(a) of the LRA.  The
first respondent decided to bring the
employment of the applicant to an end, and then unilaterally acted in
bringing about such
termination.  Was it not for this
initiative, decision and conduct of the first respondent, the
employment of the applicant
with the first respondent would not have
terminated.
[60]
As
the applicant was dismissed, it was then required of the applicant to
have pursued this dismissal as an unfair dismissal dispute
to the
relevant bargaining council, if he sought to challenge it.  That
is exactly what the employee did in
Uthukela
District Municipality
.
[56]
In the course of arbitration in the bargaining council, and once the
applicant had proven he was dismissed (which in my view would
have
been an easy task), the
onus
would shift to the first respondent to prove that such dismissal was
substantively and procedurally fair.
[57]
If the applicant is successful, he could get relief in the form of
fully retrospective reinstatement and the restoration of his

employment contract, with back pay.
[58]
[61]
There was no need for the applicant to
approach this Court directly, and on an urgent basis, relying on
concepts such as illegality
and unlawfulness of the termination of
his contract of employment.  This bypasses the carefully crafted
scheme of dispute
resolution prescribed by the LRA where it comes the
dismissal of employees.  It is an untenable prospect that just
because
an employee is employed in the public sector, such an
employee should be given a choice to either challenge a dismissal
based on
legality directly to this Court, or pursue an unfair
dismissal dispute in the bargaining council in terms of Chapter VIII
of the
LRA.  As said above, this would allow the undesirable
situation of a dual dispute resolution system to fester.  It is

now time to make it clear, once again, that where an employee is
dismissed, whether in the private or public sector, that employee

must follow the prescribed dispute resolution process under Chapter
VIII of the LRA.  This is not only an available alternative

remedy, but a prescribed alternative remedy.
[62]
It
was never the intention with the introduction of Section 158(1)(h) of
the LRA that this Court should be tasked, by virtue of
this
provision, with deciding what is in essence dismissal disputes of
public sector employees as a Court of first instance, especially

considering that these are motion proceedings.  These kind of
disputes are in my view always best decided and resolved in

arbitration proceedings.  The function of this Court should be
to supervise the outcome arrived at in such arbitration
proceedings,
[59]
and not deciding disputes as a first instance institution instead.
Van Niekerk J in
Lesiba
v Regional Head: Department of Justice and Constitutional Development
(Mpumalanga Province) and Another
[60]
in my view aptly articulated the position as thus:
‘
There
is simply no basis on which the application ought to be entertained.
To do so would undermine the statutory purpose underlying
dispute
resolution under the LRA. Workplace discipline remains regulated by
the code of practice and preliminary points or to be
dealt with in
the ordinary course of the exercise of workplace discipline, as they
were in the present instance. If these rulings
become the subject of
dispute, these are matters that ought to be dealt with if necessary
during the course of an arbitration under
the auspices of the CCMA
were bargaining council having jurisdiction. This court exercises a
supervisory jurisdiction by way of
its power to review rulings and
awards made by arbitrators. That system is entirely undermined when
parties seek this court’s
intervention, as a forum of first
instance …
’
The
abuse of the Section 158(1)(h) by well paid public service employees
to bypass a dispute resolution process that must be (and
is) followed
by everyone else, must stop.
[63]
When
this Court is faced with these kind of applications where the
challenge of the dismissal of a public service employee is at
stake,
there should in my view be only one consideration, being whether
exceptional and compellingly urgent considerations exist
justifying
immediate intervention.  Entertaining the matter should be the
absolute exception.  This Court should jealously
guard the key
to the direct access door in this regard.  I am confident in
saying that intervention should be declined unless
it can be shown
that a grave and irremediable injustice would take place should the
normal dispute resolution process be followed.
I appreciate
this is a hefty hurdle.  But if that is what is needed to stop
the abuse, then so be it.
[61]
[64]
One
cannot overemphasize the fact that the review jurisdiction of this
Court under Section 158(1)(h) flows from the LRA itself.
As
such, this jurisdiction must always be applied within the scheme of
the LRA as a whole.
[62]
I mention this again because the Court in
Steenkamp
[63]
when dealing with dismissals held that LRA did not envisage unlawful
or illegal dismissals, and it was all about whether it was
fair or
unfair.  The point I make is that as soon as a dispute concerns
an unfair dismissal claim, it must be pursued, and
then considered,
on the basis of what is fair.  And when doing so, arbitration is
clearly the most appropriate route to take.
Legality is a
winner take all approach.  Fairness is more than that, as it
envisages flexibility, and ultimately protects
the interests of both
parties.  In the whole scheme of the LRA, fairness must have
preference over legality as a basis to
resolve dismissal disputes.
This approach should only be departed from the case of extraordinary
circumstances as discussed
above.
[65]
What
makes the matter
in
casu
even worse is that several of the applicant’s legality
challenges are founded on nothing else but the fairness provisions
in
the LRA.  The applicant complains that the reasons given for his
termination of his employment do not ‘hold water’,
he was
not given an opportunity to be heard, the 2016 resolution ‘does
not comply with fair labour practice’, and the
MEC conducted an
investigation without given the applicant an opportunity to be
heard.  There kind of issues can be fully
dealt with and
competently raised in any arbitration proceedings in the course of
deciding whether the applicant’s dismissal
was substantively
and procedurally fair.
[64]
[66]
It
cannot assist the applicant to try and label the dispute as something
else.  By calling the dispute an unlawful or irregular
or
illegal termination of employment, does not change what is in
reality, a dismissal dispute. In
Zungu
[65]
the Court dealt with what it had identified on the facts to be a
dismissal dispute under Section 186(1)(b) of the LRA, despite
it
being labelled as something else, and said:
‘
It
is sophistry to try to conceptualise the dispute as something else.
Even if it is possible to characterise the dispute as having
other
characteristics too, such additional attributes do not dispel the
validity of the finding that it fell within the purview
of s
186(1)
(b).
In a judicial system where jurisdiction over causes of action is
divided among several fora, it is no surprise that the imposition
of
what is, for policy reasons, an artificial ring-fencing of types of
disputes, will from time to time result in a rubbing-up
against the
edges. However, where a clear characterisation is possible, it is not
sensible to force a different characterisation
to facilitate forum
shopping. There can be no serious doubt that the legislation
contemplates and requires a claim that a fixed-term
contract be
renewed on the grounds of a legitimate expectation is a species of
‘dismissal’, as defined in s 186 and
is further regulated
by s 191 of the LRA to be within the exclusive jurisdiction of the
CCMA.
’
[67]
I
thus conclude that the real and true issue in dispute is that of a
dismissal as defined in Section 158(1)(a) of the LRA.
This
dispute must be dealt with in terms of the normal dispute resolution
process under Chapter VIII of the LRA.  This means
that only one
consideration remains.  Did the applicant make out a case of
exceptional circumstances justifying intervention
nonetheless?
In my view, not at all.  The applicant, in the founding
affidavit, has made much of the financial prejudice
that he would
suffer.  But surely this is the case with any dismissed
employee.  He says his reputation has been tarnished
because of
a story that aired on Carte Blanche on 27 November 2016 about this.
But this event clearly preceded his termination
of employment and
cannot serve to justify why he could not have followed the normal
dispute resolution process available to him.
The
applicant bandies about phrases such as ‘grave injustice’
in a general and unsubstantiated manner, but this does
not assist him
in the absence of proper particularity.   There is simply
nothing compelling on the facts that indicate
why the applicant’s
dispute could not be treated the same way as any other employee that
has been dismissed.  Also,
and as stated above, the applicant
can obtain full and complete redress if he is successful in an unfair
dismissal claim in the
normal course.  There accordingly exist
no compelling considerations of injustice or the kind of trampling of
fundamental
rights that will motivate this matter being immediately
dealt, such as for example was the case in
S
A Broadcasting Corporation
.
[66]
[68]
As a result, I conclude that the applicant
was required to have pursued his termination of employment on 7
December 2016 as an unfair
dismissal dispute to the relevant
bargaining council in the public service. It was not appropriate for
him to have approached this
Court on the basis of urgency to
challenge such dismissal and labelling it as a legality review.
There exists no exceptional
circumstances justifying the bypassing of
the normal dispute resolution processes as prescribed by Chapter VIII
of the LRA.
The applicant’s application is thus doomed to
fail, and cannot be sustained.
Evaluation:
the first respondent’s counter application
[69]
Turning
to the first respondent’s counter application, it is of course
true that the first respondent does not have the option
available to
it to resort to the dispute resolution processes under the LRA, as
the applicant does. Applying the
ratio
in
Hendriks
,
[67]
it would thus be competent for an employer in the public service,
such as the first respondent, to approach this Court in terms
of
Section 158(1)(h) to review and set aside decisions by functionaries
that do not conform with the principle of legality. This
would
include seeking to review and set aside the 2013 resolution,
in
casu
.
There are in fact several examples of this Court reviewing and
setting aside resolutions adopted by functionaries in the public

service, on the basis of it being invalid, or null and void.
[68]
[70]
Even though it may be competent to consider
the first respondent’s review application on the merits, there
are in my view
several insurmountable obstacles to this application
succeeding, which I will now elaborate on.
[71]
Firstly,
and considering the counter application is brought to review and set
aside the 2013 resolution, it has been brought way
out of time.
Whilst it is true that there exists no prescribed time limit for a
review application in terms of Section 158(1)(h)
of the LRA, it is
trite that such an application must still be brought without undue
delay.  In
Khumalo
[69]
the Court held:
‘…
it
is a 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 to regulate their own proceedings) to refuse a
review application in the face of an undue delay
in initiating
proceedings …
’
[72]
The
second respondent, on its own version, became aware of the 2013
resolution in October 2014, and then sought to investigate after

having been sent all the information.  On 29 June 2015, the MEC
then instructed the first respondent to take appropriate action
to
remedy the situation.  Legal opinion was only taken in August
2016 about what to do next, and it was then decided not seek
to
challenge the 2013 resolution in Court. The actual counter
application the only followed on 14 March 2017.  All of this

means that there is a delay, on the most favourable consideration of
the facts for the first respondent, namely as from when it
was first
instructed by the MEC to take action, of some 20 (twenty) months in
bringing the application.  By the time the application
was
brought, the applicant had been in the position for some three
years.  This kind of delay is a material and excessive
delay,
and could serve to non-suit the first respondent.
[70]
[73]
In
Gqwetha
v Transkei Development Corporation Ltd and Others
[71]
the Court said the following:
‘
It
is important for the efficient functioning of public bodies …
that a challenge to the validity of their decisions by proceedings

for judicial review should be initiated without undue delay. The
rationale for that longstanding rule … is twofold: First,
the
failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, and in my view, more
importantly,
there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions. …
’
[74]
In
Khumalo
[72]
the Court held:
‘
Section
237 of the Constitution provides: 'All constitutional obligations
must be performed diligently and without delay.' Section
237
acknowledges the significance of timeous compliance with
constitutional prescripts. It elevates expeditious and diligent
compliance
with constitutional duties to an obligation in itself. The
principle is thus a requirement of legality
.’
The
Court in
Khumalo
then considered the above
ratio
in
Gqwetha
and said:
[73]
‘
In
Gqwetha
the
majority of the Supreme Court of Appeal held that an assessment of a
plea of undue delay involves examining: (1) whether the
delay is
unreasonable or undue (a factual enquiry upon which a value judgment
is made in the light of 'all the relevant circumstances');
and if so
(2) whether the court's discretion should be exercised to overlook
the delay and nevertheless entertain the application.
In
terms of the first leg of the enquiry, any explanation offered for
the delay is considered. ….
’
And
finally as to the exercise of the discretion whether or not to
overlook the delay, the Court held:
[74]
‘…
On
this leg of the test, the majority in
Gqwetha
held that the delay cannot be evaluated in a vacuum but must be
assessed with reference to its potential to prejudice the affected

parties and having regard to the possible consequences of setting
aside the impugned decision. In the context of public sector

employment, the value of security for employees and in mitigating the
arguably inherent inequality of the workplace must be kept
in mind.’
[75]
The
first respondent did not seek to offer any explanation for the delay.
The first respondent similarly did not even ask this Court
to
overlook the delay, in line with the principles as set out in
Khumalo
.
The same criticism can be applied to the MEC, who also filed an
answering affidavit, but similarly chose not to address the material

delay in any way at all. These failures are serious. In
Khumalo
it was held:
[75]
‘
The
fact that the MEC has elected not to account for the delay, despite
having had the opportunity to do so at multiple stages in
the
litigation, can only lead one to infer that she either had no reason
at all or that she was not able to be honest as to her
real reasons.
Had the matter been brought by a private litigant, this aspect of the
test might weigh less heavily. However, given
that the MEC is
responsible for the decision, that she is obliged to act
expeditiously in fulfilling her constitutional obligations,
and that
she should have within her control the relevant resources to
establish the unlawfulness of the decision she impugns, the

unreasonableness of the unexplained delay is serious …
’
[76]
The
judgment in
Khumalo
has many similarities on the facts, to the first respondent’s
counter application now before me. The challenges raised
in
casu
are virtually identical to those in
Khumalo
.
In fact, in
Khumalo
,
the Court accepted that the employee concerned did not meet the
requirements for the post into which he was appointed, and that
the
MEC concerned was justified to seek to set it aside on review.
[76]
But despite this, the Court in
Khumalo
concluded:
[77]
‘
The
nature of the application and the strength of the merits do not
favour overlooking the delay. The delay was unreasonable and

unexplained, and although we might ameliorate the consequences of a
possible finding of unlawfulness in remedy, the nature of the
claim
does not warrant condoning the delay.
’
The
same consequences must follow
in casu
.  The delay is
indeed unreasonable and entirely unexplained.  Even if the first
respondent is correct in saying that
the applicant was appointed in
his position without the requisite qualifications, this is still
insufficient to warrant condoning
the delay occasioned in this case,
in bringing the application.  For these reasons alone, the first
respondent’s counter
application must fail.
[77]
Secondly, in the answering affidavit filed
on 16 February 2017, as discussed above, the first respondent on its
own version made
it clear that it did not consider the applicant’s
appointment to be null and void. Specifically, the first respondent
says:
‘
Mr
Mohlomi’s appointment was not treated as null and void, it was
treated as being in contravention of the Act and his contract
was
cancelled’
It
must follow that this means that the first respondent decided not to
take issue with the 2013 resolution, and the appointment
of the
applicant in terms thereof.   What the first respondent
specifically said is that because it discovered the applicant
did not
have the requisite qualifications for the position and misrepresented
this in his application for the position, his appointment
did not
comply with the Systems Act, and thus it was entitled to bring about
the termination of the employment of the applicant,
which it did by
way of the 2016 resolution.
[78]
By
seeking to now challenge the very same appointment made in terms of
the 2013 resolution by way of the counter application, the
first
respondent is blowing hot and cold.  It is taking up two
different positions that are mutually contradictory.
On the one
hand, it takes no issue with the appointment of the applicant but
contends it is entitled to bring it to an end.
On the other
hand, it seeks to set aside the appointment of the applicant as being
invalid and irregular.  The first respondent
cannot have it both
ways.  Only one of these causes of action can apply. As was also
said in
Pretorius
v Rustenburg Local Municipality and Others:
[78]
‘…
The
law of contract recognizes that in certain circumstances a
contracting party may be put to an election either to approbate (ie

to affirm the continued existence of the contract) or to reprobate
(ie to cancel or terminate the contract). A contracting party
is
bound by such an election, whether evinced expressly or by conduct,
and cannot go back on it once made. He cannot, it has been
put, act
inconsistently or blow hot and cold. …’
[79]
On
the merits, the clear focus of the first respondent’s case is
founded on a contention of non-compliance with Section 56
of the
Systems Act, and a lawful termination of the applicant’s
employment as a result.  The Systems Act was amended
with effect
from 5 July 2011.
[79]
This amendment included amendments to Sections 56 and 57. The
applicant has taken issue with the validity of these amendments,

based on a judgment of Jansen J in
South
African Municipal Workers Union v The Minister of Co-Operative
Governance and Traditional Affairs
,
[80]
where the learned Judge declared this amendment to be
unconstitutional.  The learned Judge however referred this
declaration
to the Constitutional Court for confirmation, which I was
informed is still pending.   The affidavits contain
substantial
debate as to the effect of this judgment on the
respective cases of the parties.  There is however in my view no
need to indulge
this debate in this judgment, because I am of the
view that the first respondent has failed to make out a case on the
merits on
the amended Section 56 as it stands, for the reasons to
follow.  I will thus decide this matter on the basis of applying
Section
56 of the Systems Act, as amended.
[80]
Section 56(1) provides:
‘
(1)(a)
A municipal council, after consultation with the municipal manager,
must appoint – (i) a manager directly accountable
to the
municipal manager ….
(b) A person appointed in terms of
paragraph (a)(i) must at least have the skills, expertise, competence
and qualifications as prescribed.
….’
In
Section 56(2), it is provided:
‘
A
decision to appoint a person referred to in subsection 1(a)(ii), and
any contract concluded between the municipality and that
person in
consequence of the decision, is null and void if –
(a)
The
person appointed does not have the prescribed skills, expertise,
competencies or qualifications …
’
Finally
and of relevance, Section 56(5) then provides as to what can be done
where the appointment of such a manager does not comply
with Section
56(1)(b), reading as follows:
‘
If
a person is appointed to a post referred to in subsection 1(a) in
contravention of this Act, the MEC for local government must
…
take appropriate steps to enforce compliance by the municipality with
this Act, which steps may include an application
to court for a
declaratory order on the validity of the appointment or any other
legal action against the municipality. …’
[81]
In
Merafong
City Local Municipality
[81]
the Court dealt with the appointment of a municipal manager in terms
of Section 54A of the Systems Act.  For all intents and

purposes, the wording thereof is virtually identical when compared to
the relevant subsections of Section 56.
[82]
The Court specifically considered the stipulation where the appointed
person did not possess the relevant skills and qualifications,
the
fact that such an appointment would be in contravention of the
Systems Act, and then the application of the provision that
any
decision appointing the person and any contract concluded as a
consequence of that decision, would be null and void.
The
Court accepted that despite such a ‘null and void’
provision, the MEC concerned still has a duty to satisfy himself
/
herself that the appointment and the process followed in making the
appointment was in compliance with the Systems Act, taking
all
available information into account.
[83]
The Court next considered the instance where the MEC concerned was
dissatisfied that there had been compliance with the Systems
Act, had
particular regard to Section 54A(8)
[84]
,
and said:
[85]
‘
The
provisions of s 54A(8) and (9) are measures that also have as their
purpose the prevention, or limitation, of a proliferation
of
litigation, or multiple litigation, or unnecessary litigation, with
its attendant consequences, least of which, is the delay
that ensues
with all of its ramifications. The provisions also seem to maintain
and retain the hierarchical responsibility for
appointments to be
made in compliance with the Systems Act. …
’
[82]
It is
significant that despite the Systems Act providing for an appointment
of a manger being null and void if it is not in compliance
with the
Systems Act, it does not follow that the municipality (such as the
first respondent) can simply revoke, ignore or cancel
the
appointment.  If the municipality wants to treat the appointment
as null and void, then it must approach the Court for
an order to
that effect.
[86]
In
Mbashe
Municipality v Dumezweni and Others
[87]
the Court dealt with Section 54A(3)
[88]
and said:
‘
I
do not understand subsection (3) to mean that the appointment of a
municipal manager may be treated conclusively by a Municipality,
or
anybody else, as null and void without the intervention of a court.
The principle of legality does not permit this. Contracts
are binding
but may be void or voidable.
’
This
ratio clearly applies to Section 56(2) as well.
[83]
Therefore, and before any action is taken
to enforce compliance with the Systems Act, there is first a duty on
the MEC to investigate,
gather all information, and if a
contravention is found to exist, to then only take steps to enforce
compliance with same.
It is also clear that ‘enforcing
compliance’ is not only limited to challenging the appointment
in a Court, as this
avenue is only one of the steps that may be
taken.  In my view, it is clear from the
ratio
in
Merafong City Local Municipality
that the phrase ‘take appropriate steps’ includes steps
to bring about the termination of employment of the manager
concerned
without having to resort to legal action.   Ordinarily,
legal action would only be the appropriate course of
action if the
MEC or Municipality seeks invoke Section 56(2) to declare the
appointment null and void.  So, and in short,
where an
appointment does not comply with Section 56(1)(b) of the Systems Act,
the MEC is obliged to remedy the situation by either
instituting
process to bring about the termination of employment of the manager,
or litigating to challenge the validity of the
appointment.
[84]
On the facts as set out above, the MEC
(‘second respondent’) became aware of the issue about the
difficulties with the
applicant’s qualifications at least in
October 2014.  In line with the obligations imposed on the MEC,
an investigation
followed, and all the available information was
provided to the MEC.  Clearly having stratified himself as to
the issue of
non compliance with the Systems Act, the MEC instructed
the first respondent on 29 June 2015 to take the ‘appropriate
steps’
to remedy the situation.  The first respondent then
took legal advice, and decided that the appropriate steps to be taken
in this particular instance would be to bring about the termination
of employment of the applicant, which it then resolved to do.

The first respondent could have chosen to instead approach a Court to
decide on the validity of the appointment, but decided not
to. Having
chosen its course of action, the first respondent must be held bound
to it.  It simply cannot later, in litigation
proceedings
seeking to challenge the validity of its decision to follow the route
of termination of employment, change stance and
then decide to
challenge the validity of the appointment.
[85]
The above being said, it must be stated
that there can be nothing wrong with the first respondent deciding to
bring about the termination
of the employment of the applicant so as
to remedy the non-compliance with Section 56 of the Systems Act.
But what must be
emphasized is that this termination of employment,
as discussed above, would be a dismissal, and as such, it needed to
be fair
in line with what is required in LRA.  Section 57 of the
Systems Act, which is the provision in the Systems Act requiring that

all Section 56 managers must have a written contract of employment
and then provides for the essential terms and conditions to
be dealt
with in such contract, provides as follows in Section 57(3):
‘
The
employment contract referred to in subsection 1(a) must – …
(a)
include the details of duties, remuneration, benefits and other terms
and conditions
as agreed to by the parties, subject to consistency
with–
(i)
this Act;
(ii)
any regulations as may be prescribed that are applicable to municipal
managers or
managers directly accountable to municipal managers; and
(iii)
any applicable labour legislation ….
’
[86]
What
is clear is that the applicant’s contract of employment must be
applied in a manner that is consistent with the LRA,
and the
applicable regulations.  As I have summarized under the factual
background above, the employment contract of the applicant
provides
for termination on any ground recognized by law, if substantiated.
The regulations similarly contemplate the application
of the LRA in
bringing about termination of the contract of employment.
[89]
Thus, and where the first respondent wants to remedy non-compliance
with Section 56(1)(b) by way of termination of the contract
of
employment, it must comply with the LRA. Insofar as it may be said
the Systems Act may provide otherwise, the LRA has preference.
[90]
[87]
In
the end, the first respondent, if it believed that the applicant did
not meet the minimum qualifications to be appointed in the
position
and misrepresented the true state of affairs, would be entitled to
terminate the employment of the applicant on this basis,
provided it
was fair to do so.  Fairness entails that the first respondent
substantiate the reason for termination in proper
proceedings
convened for that purpose. In this regard, the contention that the
applicant misrepresented his qualifications would
be a matter of
misconduct, for which proper disciplinary proceedings could be
instituted and for which dismissal may well be competent.
[91]
If the applicant did not meet the necessary qualification
requirements for the position, this could serve as a basis for
possible
termination of employment on the grounds of incapacity and
equally an incapacity process as contemplated by the LRA had to be
applied.
[92]
But it was simply not on for the first respondent to bypass all of
this by way of simply adopting the 2016 resolution and
unilaterally
bringing about the termination of employment of the applicant on that
basis, under the guise of simply calling it
a ‘lawful’
termination.  The counter application to try and legitimize this
position by attacking the original
appointment by way of the 2013
resolution cannot assist the first respondent to change this.
As said in
SA
Post Office Ltd v Mampeule
[93]
:
‘…
.
it is accepted in labour law jurisprudence that lawfulness cannot be
equated with fairness. Accordingly it is not a defence to
an unfair
dismissal claim that the employee's dismissal was lawful ….
.Thus Mampeule, like any other employee, enjoyed the
right not to be
unfairly dismissed or more appropriately unfairly removed. This is
more so since the Act was enacted to give effect
to the right to fair
labour practices guaranteed in s 23(1) of the Constitution of the
Republic of SA (
Act
108 of 1996
).
The right not to be unfairly dismissed is not only essential to the
enjoyment of this constitutional imperative but is one of
the most
important manifestations thereof and further forms the foundation
upon which the relevant sections of the Act are erected
and is
consonant with the spirit and the letter of the Act ….
’
[88]
What I have said above can by no means be
considered to be a pronouncement of the fairness of the termination
of employment of the
applicant.  It is simply not my place to do
so.  It is still up to the applicant to pursue an unfair
dismissal dispute
to the relevant bargaining council, and in those
proceedings, it would be open to the first respondent to prove that
it had a fair
reason for the termination of employment based on the
applicant’s alleged lack of qualifications and
misrepresentation.
[89]
It is
thus not necessary for me to decide whether the applicant did meet
the requirements for appointment into the position, where
it came to
the qualifications prescribed. This is an issue that must be fully
ventilated in any dismissal dispute the applicant
may wish to pursue
to the bargaining council, as I have stated previously, he should
have done so in the first place.  It
is an issue that cries out
for determination after hearing proper evidence and discussion in
arbitration as to whether the applicant
met the qualification
requirements or not.  As said in
Merafong
City Local Municipality
:
[94]
‘
Whether
a particular person fulfils the requirements for appointment as
municipal manager appears to be a matter of objective fac
t’
This
would equally be applicable to a Section 56 manager, such as the
applicant.  It is certainly not appropriate to deal with
the
same in urgent motion proceedings.
[90]
For all the reasons set out above, it is my
view that the first respondent’s counter application must fail.
Conclusion
[91]
Based on all that has been discussed above,
I conclude that the applicant has failed to make out a case to review
and set aside
the 2016 resolution, on the basis that it was not
appropriate for the applicant to approach this Court directly seeking
such relief,
instead of pursuing an unfair dismissal dispute to the
requisite bargaining council in terms of Chapter VIII of the LRA. The
applicant’s
application is thus dismissed.
[92]
As to the first respondent counter
application to review and set aside the 2013 resolution, this
application must similarly fail,
as it was made excessively out of
time and no proper cause to overlook this delay was made out.
Also, the first respondent
must be held bound to its decision to
pursue a termination of employment of the applicant in order to
remedy what it considered
to be a violation of Section 56(1)(b) of
the Systems Act, instead of seeking to challenge the original
appointment of the applicant.
The counter application of the
first respondent must therefore also be dismissed.
[93]
With the applicant’s application
being dismissed, the basis for the interim relief afforded to the
applicant in terms of Part
A of his application thus falls away.
For the sake of clarity, I shall thus also make an order to the
effect that the interim
relief granted in terms of the order of
Lallie J on 20 December 2016 is discharged.
[94]
This is however not the end of the road for
the parties, and their respective cases.  The applicant would of
course still be
free to pursue his termination of employment as an
unfair dismissal dispute to the relevant bargaining council.
The first
respondent would still be able to prove in any bargaining
council proceedings that it had proper substantive reason to
terminate
the employment of the applicant.  In short, whether
what happened to the applicant is fair or unfair is an issue that
must
still be decided, in the proper forum tasked to do so by the
LRA.
[95]
This then only leaves the issue of costs.
In terms of the provisions of Section 162(1) and (2) of the LRA, I
have a wide discretion
where it comes to the issue of costs. I
consider that both parties failed in the relief that they sought.
I also consider
that both parties applied the same kind of ill
advised approach of coming to this Court to deal with issues that
should have been
dealt with in another forum in the course of the
normal prescribed dispute resolution processes under the LRA.  I
am also
mindful of the fact that considering what happened until now,
it is likely that the engagement between the parties in litigation

will continue in another forum.  In light of all of these
circumstances, I do not believe it would be appropriate to mulch

either of the parties with a costs order against him, or it.  It
is thus my view that the appropriate order where it comes
to costs,
is to make no order as to costs.
Order
[96]
In the premises, I make the following
order:
1.
The applicant’s application is
dismissed.
2.
The first respondent’s counter
application is dismissed.
3.
The interim relief granted to the applicant
in terms of paragraphs 1, 2, 3 and 4 of the order of Lallie J dated
20 December 2016
is hereby discharged.
4.
There is no order as to costs.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:

Mr C Scholtz of Francois Uys Inc Attorneys
For the First Respondent:
Adv L Morrison SC with Adv
M Seti-Baza
Instructed by:

Maimane Inc Attorneys
[1]
Act 66 of 1995.
[2]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E 635C ; See also
Jooste
v Staatspresident en Andere
1988
(4) SA 224
(A)
at
259C – 263D;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
at
paras 26 – 27;
Molapo
Technology (Pty) Ltd v Schreuder and Others
(2002) 23 ILJ 2031 (LAC) at para 38. These principles were
summarized in
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and
Another
2009
(3) SA 187
(W) para 19 aptly as follows: ‘…where an
applicant in motion proceedings seeks final relief, and there is no
referral
to oral evidence, it is the facts as stated by the
respondent together with the admitted or undenied facts in the
applicants'
founding affidavit which provide the factual basis for
the determination, unless the dispute is not real or genuine or the
denials
in the respondent's version are bald or uncreditworthy, or
the respondent's version raises such obviously fictitious disputes
of fact, or is palpably implausible, or far-fetched or so clearly
untenable that the court is justified in rejecting that version
on
the basis that it obviously stands to be rejected.’
[3]
Act 32 of 2000 (as amended).
[4]
The applicant has also referred to
Regulation 17 of the Local Government: Municipal Performance
Regulation for Municipal Managers
and Managers Directly Accountable
to Municipal Managers, 2006, which similarly provide.
[5]
Act 117 of 1998.
[6]
(2015) 36 ILJ 163
(LAC) at para 20.
[7]
(2016) 37 ILJ 1857
(LAC) at para 38.
[8]
Promotion of
Administrative Justice Act 3 of 2000.
[9]
(
supra
)
at para 28.
[10]
(2014) 35 ILJ 613
(CC) at para 28.
[11]
(2014) 35 ILJ 2131
(LAC) at para 33.
[12]
Id at para 34.
[13]
Id at para 35.
[14]
See
Brodie
v Commission for Conciliation, Mediation and Arbitration and Others
(2013) 34
ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011)
32 ILJ 730 (LC) at para 9;
De
Beer v Minister of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27;
Northam
Platinum Ltd v Fganyago NO and Others
(2010)
31 ILJ 713 (LC) at para 27.
[15]
(2010)
31 ILJ 296
(CC)
at para 74.
[16]
(supra) at para
36.
[17]
(2008) 29 ILJ 73
(CC).
[18]
Id at paras 64 – 65.
[19]
Id at para 56.
[20]
(supra) at paras 10 – 12.
[21]
[2017] JOL 38772
(LC) at para 10.
[22]
See
Chirwa
(
supra
)
at paras 64 and 66;
Public
Servants Association of SA on behalf of de Bruyn v Minister of
Safety and Security and Another
(2012)
33 ILJ 1822 (LAC) at para 26.
[23]
This is found in
Chapter VIII of the
LRA, and in particular Section 191.
[24]
(2016) 37 ILJ 564
(CC)
[25]
Id at para 116.
[26]
Id at para 130.
[27]
Compare
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another
(2003) 24 ILJ 305 (CC) at para.52;
Chirwa
(
supra
)
at para 63;
Gcaba
(
supra
)
at para 66;
Farre
v Minister of Defence and Others
(2017) 38 ILJ 174 (LC) at para 17.
[28]
(
supra
)
at para 124.
[29]
(2012) 33 ILJ 1822
(LAC) at para 32.  See also the conclusion reached by the Court
at para 34 of the judgment.
[30]
See
Gcaba
(
supra
)
at para 75;
Mbatha
v University of Zululand
(2014) 35
ILJ 349 (CC) at para 157;
Ekurhuleni
Metropolitan Municipality v SA Municipal Workers Union on behalf of
Members
(2015)
36 ILJ 624 (LAC) at para 21;
Moodley
v Department of National Treasury and Others
(2017) 38 ILJ 1098 (LAC) at para 37;
Besani
v Maquassi Hills Local Municipality
(2016)
37 ILJ 1386 (LC) at para 34.
[31]
(2017) 38 ILJ
1644 (LAC) at para 18.
[32]
(2014)
35 ILJ 1217 (LC) at para 18.
[33]
(2008)
29
ILJ
2461
(CC)
at
para 66.
[34]
(
supra
)
at para 28.
[35]
(2011) 32 ILJ 112
(LAC) at para 54.
[36]
(2012) 33 ILJ 2033
(LAC).
[37]
Id at para 46.
[38]
[2013] ZALCJHB 232
(30 August 2013)
at
para 63. See also
Ida
v Department of Co-Operative Governance Human Settlements and
Traditional Affairs Limpopo Province and Another
[2016] JOL 37301
(LC) at para 53;
Zondo
and Another v Uthukela District Municipality and Another
(2015) 36 ILJ 502
(LC) at para 17.
[39]
(
supra
)
at para 41.  See also
Hendricks
(
supra
)
at para 27;
MEC,
Department of Education, KwaZulu-Natal v Khumalo and Another
(2010)
31 ILJ 2657 (LC)
at
para 26.
[40]
(2017) 38 ILJ 1075
(LAC) at para 52.
[41]
(
supra
)
at paras 53 and 92,
[42]
See Section 108 of the LRA.
[43]
(2016) 37 ILJ 2888
(LC) at paras 65 – 66.
[44]
Public Service Act
103 of 1994.  Prior to the
Public Service Amendment
Act
30 of 2007
this
was dealt with in
Section 17(5)
, and after these amendments in
Section 17(3).
[45]
See
Public
Servants Association on behalf of Smit v Mphaphuli NO and Others
(2014)
35 ILJ 2260 (LC) at paras 26 and 32;
Grootboom
v National Prosecuting Authority and Another
(2014) 35 ILJ 121 (CC) at paras 12 and 45;
Weder
(
supra
)
at paras 33 and 36 – 37.
[46]
(
supra
)
at para 27.
[47]
(2009) 30 ILJ 2653
(SCA) at para 18.
[48]
(2014) 35 ILJ 613
(CC) at para 31.  The Court was referring to
Chirwa
(
supra
)
at
para
66
.
[49]
(2001) 22 ILJ 2290
(LAC) at para 23.
[50]
The provision was not materially
amended in 2015.  It used to read: ‘‘
Dismissal'
means that-
(a)
an employer has
terminated a contract of employment with or without notice…’.
All that thus changed is that
‘contract of employment’
was replaced with ‘employment’, making the definition
even wider.
[51]
(2004) 25
ILJ
731 (LC) at para 14 – 15. See also
National
Union of Metalworkers of SA and Others v SA Five Engineering (Pty)
Ltd and Others
(2007) 28
ILJ
1290 (LC) at para 41;
Ismail
v B & B t/a Harvey World Travel Northcliff
(2014) 35
ILJ
696 (LC) at para 27.
[52]
(2012) 33
ILJ
2386 (LC) at para 13.  See also
Heath
v A & N Paneelkloppers
(2015)
36 ILJ 1301 (LC) at paras 31 and 33.
[53]
(2009) 30
ILJ
2745
(LC) at para 31.
[54]
[2015] ZALCD 19
(20 March 2015) at para 18.
[55]
Id at para 65.
[56]
See para 2 of the judgment.
[57]
Section 192(2)
of
the LRA.
[58]
Section 193(1)
of the LRA.  See
also
SA
Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2017)
38 ILJ 97 (CC) at para 38;
Equity
Aviation Services Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29 ILJ 2507 (CC)
at
para 44;
Independent
Municipal and Allied Trade Union on behalf of Strydom v Witzenberg
Municipality and Others
2012)
33 ILJ 1081 (LAC) at para 30;
Elliot
International (Pty) Ltd v Veloo and Another
(2015) 36 ILJ 422 (LAC) at para 53;
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha and Others
(2016) 37 ILJ 2313 (LAC) at paras 6 and 8.
[59]
See
Satani
v Department of Education, Western Cape and Others
(2016) 37 ILJ 2298
(LAC) at para 21;
Pep
Stores (Pty) Ltd v Laka NO and Others
(1998)
19
ILJ
1534 (LC)
at
para
23
;
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman NO and Others
(2013)
34
ILJ
2347 (LC)
at
para
37
.
[60]
[2017] ZALCJHB 365
(4 October 2017) at para 7.
[61]
See the sentiments expressed in
SA
Municipal Workers Union on behalf of Members v Kopanong Local
Municipality
(2014)
35
ILJ
1378 (LC) at para 33;
South
African Municipal Workers’ Union obo Dlamini and others v
Mogale City Local Municipality and another
[2014]
12 BLLR 1236
(LC)
at para 45;
Zondo
and Another v Uthukela District Municipality and Another
(2015) 36
ILJ
502 (LC) at para 45.
[62]
See the
dictum
from the judgment of the Labour Appeal Court in
de
Bruyn
quoted earlier in
this judgment at para 38.
[63]
See para 36 of
this judgment,
(
supra
).
[64]
See
Section 188(1)
of the LRA.
[65]
(
supra
)
at para 20.  See also
Aucamp
(
supra
)
at paras 21 and 24.
[66]
(
supra
)
footnote 43.
[67]
(
supra
)
para 50.
[68]
For
examples of such challenges see
Motitswe
v City of Tshwane
(2014) 35
ILJ
3458
(LC);
Sondlo
v Chris Hani District Municipality
(2008) 29
ILJ
2010
(LC);
SA
Municipal Workers Union on behalf of Monyama and Others v Greater
Tzaneen Municipality and Others
(2013) 34
ILJ
1781
(LC);
Retlaobaka
v Lekwa Local Municipality and Another
(2013) 34 ILJ 2320 (LC).
[69]
(supra) at 44
[70]
In
Khumalo
(supra)
at
para 39, the Court also dealt with a virtually identical situation
where a MEC sought to challenge an appointment 20(twenty)
months
after becoming aware of complaints and four years after the employee
had actually been appointed in the post.
[71]
2006
(2) SA 603
(SCA)
at
para 22.
[72]
(2014) 35 ILJ 613
(CC) at para 46.
[73]
Id at paras 49 –
50.
[74]
Id at para 52.
[75]
Id at para 51.
[76]
See paras 38 and 67 of the judgment.
[77]
Id at para 68.  The Court
concluded at para 69 that this non-suited the MEC.
[78]
(2008)
29 ILJ 1113 (LAC)
at
para 41.  See also
Hlatshwayo
v Mare &
Deas
1912 AD 242
;
Universal
Product Network (Pty) Ltd v Mabaso and Others
(2006)
27 ILJ 991 (LAC) at para 46.
[79]
This was done by way of the Municipal
Systems Amendment Act 7 of 2011.
[80]
(2016) JOL 3555238 (GP).
[81]
(
supra
)
footnote 7.
[82]
Compare Sections 54A(2), (3) and (8).
[83]
Id at paras 61 – 62.
[84]
Basically the twin of Section 56(5),
applying to the municipal manager, where Section 56(5) applies to
managers reporting to the
municipal manager.
[85]
Id at para 66.
[86]
This is in fact the view of the MEC
in his answering affidavit filed on 30 January 2017.
[87]
[2015] JOL 33241
(LAC) at para 23.
[88]
The twin of Section 56(2).
[89]
See Regulation 17(2) of the Local
Government: Municipal Performance Regulation for Municipal Managers
and Managers Directly Accountable
to Municipal Managers, 2006.
[90]
See Section 210 of the L:RA which
reads: ‘
If
any conflict, relating to the matters dealt with in this Act, arises
between this Act and the provisions of any other law save
the
Constitution or any Act expressly amending this Act, the provisions
of this Act will prevail’.
[91]
See
G4S
Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others
(2017) 38 ILJ 881
(LAC) at para 26;
Department
of Home Affairs and Another v Ndlovu and Others
(2014) 35 ILJ 3340 (LAC) at para 17;
Hoch
v Mustek Electronics (Pty) Ltd
(2000)
21 ILJ 365 (LC) at para 47.
[92]
Compare
Samancor
Tubatse Ferrochrome v Metal and Engineering Industries Bargaining
Council and Others
(2010)
31 ILJ 1838 (LAC) at paras 10 – 11. On appeal, the SCA in
National
Union of Mineworkers and Another v Samancor Ltd (Tubatse
Ferrochrome) and Others
(2011)
32 ILJ 1618 (SCA).
did
not overturn the
ratio
in the judgment of the LAC referred to in these paragraphs.
[93]
(2010) 31 ILJ 2051
(LAC) at para 21(b).
[94]
(supra) at para 59