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[2017] ZALCD 7
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Moseya v Msunduzi Municipality (D1282/13) [2017] ZALCD 7 (3 February 2017)
IN THE LABOUR COURT OF
SOUTH AFRICA: HELD AT DURBAN
Reportable
Case no: D1282/13
In the matter between:
PIUS
JABULANI
MOSEYA
Applicant
And
MSUNDUZI
MUNICIPALITY
Respondent
Heard:
18 March 2016
Delivered:
3 February 2017
Summary:
BCEA Section 77 application. Granted
JUDGMENT
GUSH J
1.
The
applicant, an employee of the respondent, applies in terms of section
77 (3) of the Basic Conditions of Employment Act to be
paid the
remuneration due to him pursuant to his appointment to the position
of Operations Manager: Waste Management by the respondent
on 6
January 2010. The applicant’s claim is limited to the
remuneration due to him in accordance with the appointment for
the
period from his appointment on 6 January 2010 to November 2013 only.
(hereinafter “the period”)
2.
At the
heart of the issue is the averment by the respondent that the
appointment by the respondent of the applicant to the position
Operations Manager: Waste Management was invalid and null and void.
3.
The
respondents bases its averment on the provisions of section 66(3) of
the Municipal Systems Act
[1]
,
which prevents a municipality from appointing a person to a post
unless that post is provided for in the staff establishment.
The
respondent avers that as the post was already filled by a Mr.
Masikane at the time of the applicant’s appointment the
appointment was invalid as the post was not vacant.
4.
The
respondent argued that it was at all times implicit that the
appointment of the applicant was in an acting capacity. It is obvious
from this averment that it is not in dispute that Mr Masekane was not
“occupying” or performing the duties commensurate
with
the post at the time of the applicant’s appointment and for
“the period”.
5.
When
the matter was heard the parties placed before the court’s an
amended statement of case by the applicants, the respondent’s
response to the applicant statement of case and the document setting
out the preliminary issues and agreed facts.
6.
The
Applicant was employed by the Respondent in 1998 as the Foreman
reporting to the Operations Manager: Waste Management. On
6
January 2010 the Applicant was appointed as the Operations Manager:
Waste Management by the then Municipality Manager, Mr R.F.
Haswell
with immediate effect.
7.
With
effect from the date of his purported appointment the applicant has
performed the functions of the Operations Manager: Waste
Management.
It appears that the respondents Human Resources Department did not
formally record the Applicant’s promotion/appointment
as the
prior incumbent a Mr Masikane was still being paid and officially
occupied the post. Despite this it is clear that the respondent
at
all material times regarded the applicant as having been appointed to
the post and that he was occupying the post.
8.
The
applicant attached to his papers documentation relating to the
respondent’s Appointment Process; a letter from the municipal
manager confirming the applicant’s appointment to
the post of Operations Manager: Waste Management and the applicant’s
acceptance which letter is endorsed “please process
appointment”. On the basis that the respondent was not entitled
to make the appointment to a post that was already filled respondent
avers that the applicant is not entitled to be paid at the
rate
applicable to that post with “the period” in question.
9.
During
the period up to the time point when the respondent disputed the
validity of the applicant’s appointment to the post
the
respondent acknowledged on various occasions that it regarded the
appointment as having been valid.
10.
On a
number of occasions the applicant addressed his concerns regarding
the matter with the respondent. Firstly with the then Respondent’s
duly appointed administrator. (The respondent at the time had been
placed under administration and the administrator was performing
the
functions of the “municipal manager”.). He advised that
the Applicant had been properly appointed and that his
task team
would address the administrative problem relating to the
remuneration. Secondly and subsequently members of the task
team
involved in the administration of the respondent after interviewing
the Applicant confirmed that the Applicant should continue
to work as
Operations Manager: Waste Management and that they would sort the
administrative problem.
11.
The
respondent thereafter also informed the Applicant that he had no need
to be concerned about his appointment as there was a valid
letter of
appointment.
12.
It is
common course that the alleged invalidity of the applicant’s
appointment only came to the attention of the respondent
during 2013.
When the matter came to the attention of respondent the respondents
apparently took legal and wrote to the respondent
on 20 March 2013
advising him inter alia that his appointment was unlawful and
irregular.
[2]
13.
Importantly
though respondent sets out quite clearly its attitude towards the
effect of the alleged irregular appointment and the
procedure it
intended taking in order to regularize the position. The letter,
having explained in some detail the basis upon which
it avers the
appointment was irregular and unlawful, continues to outline the
steps it intends taking. The respondent says:
10.
In light of the above you are invited to agree and or consent to in
writing to the setting
aside of your Appointment: Operations Manager:
Waste Manager dated 6 January 2010 signed by Mr. R F Haswell.
11.
This written agreement and/or consent must be delivered to the Office
of the Municipal Manager
within 14 days of the date hereof.
12.
Should you by the guidance of your union representatives refuse, fail
and/or neglect to
agree to the setting aside of his appointment. The
employer will have no alternative to make an application to the
Labour Court
in terms of
section 158(1)(h)
of the
Labour Relations
Act 66 of 1995
to review the administrative act of Mr. Haswell who
had promoted you, in which a cost order will also be seeked against
the respondents.
(sic)
[3]
14.
Two
important factors arise from this letter.
a.
The
first is that the respondent clearly acknowledges that the applicant
is the incumbent in the post to which he was appointed.
b.
The
second is that the respondent is of the view that the appointment in
order to be set aside requires a review of the “administrative
act of Mr. Haswell”.
15.
It is
common course that no application was by the respondent prior to
November 2013. The consequence of the issues raised in paragraph
fourteen above in paragraph 14 are that while the respondent
acknowledges that the applicant occupies the first is that the
applicant
is entitled to be paid in accordance with the position to
which he was appointed. First above Implicit in the respondents offer
16.
It is
clear that the Respondent at all material times from his appointment
in 2010 and during “the period” regarded
the Applicant as
having been appointed to the post of Operations Manager: Waste
Management.
17.
Despite
this the Applicant was not paid the amount commensurate with the
post.
18.
The
issue in this matter is simply given the circumstances is whether the
applicant is entitled to be paid for “the period”
at the
rate applicable to the post to which he was appointed. It is apparent
from the papers that the appointment did not comply
with the
provisions of section 66 (3) of the Local Government: Municipal
Systems Act
[4]
(The Systems
Act), because at the time of the appointment Mr Masekane was the
designated Operations Manager: Waste Management.
19.
There
can be no doubt that the respondent intended to appoint the
applicants to this position and in its subsequent actions confirmed
that this was so. The issue to be decided is whether in the
circumstances, given that the appointment contravened The Systems Act
the applicant is entitled to be remunerated as if his appointment was
regular.
20.
In the
matter of Oudekraal v City of Cape Town and Others
[5]
the Supreme Court of Appeals established the principle that
administrative acts even if “unlawful and invalid at the
outset”
may not simply be ignored. This principle was restated
in Kwa Sani Municipality v Underberg/Himeville Community Watch
Association
[6]
as “even
invalid administrative acts are treated as valid until they are set
aside”
[7]
the rationale
behind the principle set out in Oudekraal Estates is based on “the
legal consequences of the administrative
act”.
21.
In
this matter the consequences of the respondent having contracted with
the applicant to perform the duties of the Operations Manager:
Waste
Management and having accepted the services required the respondent
to comply with the contract for “the period”.
22.
Given
the limited nature of the applicant’s claim and the respondents
decision to invite the applicant to consent to the setting
aside of
his appointment failing which to apply for it to set aside there can
be no doubt that the applicant is entitled to the
salary commensurate
with the position. It is accordingly not necessary to deal with what
is required of an employer in such circumstances
to bring such
contract to an end.
23.
Likewise
it is not necessary to decide on the point raised by the applicant
concerning the constitutionality or otherwise of The
Systems Act or
to consider the averment by the applicant that his appointment was
regular and lawful.
24.
The
respondent suggested that at least part of the applicant’s
claim had prescribed. There was no evidence produced to gainsay
the
applicant’s averment that subsequent to his appointment the
respondent through certain of its officials confirmed and
acknowledged the applicant’s entitlement to the salary
applicable to the post of Operations Manager: Waste Management. In
addition the acknowledgment in march 2013 by the respondent of
the factual position the applicant held suggests that
the claim
has not prescribed.
25.
The
position is this: the applicant was appointed to the post of
Operations Manager: Waste Management. At all material times, prior
to
2013, the respondent and the applicant believed that this appointment
was regular. Applying the principle set out in the Oudekraal
judgment, the appointment falls to be treated as valid until set
aside particularly in the light of the respondent’s attitude
towards the consequences of the appointment as set out in its letter
of 20 March 2013. The applicant however has limited his claim
to a
specific period. This is from the date of his appointment to November
2013. Accordingly the applicant is entitled to be remunerated
as if
he had been lost be appointed to the post of Operations Manager:
Waste Management.
26.
The
applicant has claimed an amount of R240,379.86. There was no evidence
to suggest that the amount claimed by the applicant had
been
incorrectly calculated. In so far as this amount might be incorrect
parties may enroll the matter again for the amount due
to the
applicant to be determined.
27.
As far
as costs are concerned I am not persuaded that I should exercise my
discretion in awarding costs.
28.
The
circumstances and for the reasons above I make the following order:
The respondent is ordered
to pay the applicant the amount of R240,379.86 together with interest
thereon from the date on which the
applicant filed this application.
There is no order as to
costs
_______________
D
H GUSH
Judge
of the Labour Court South Africa
APPEARANCES
FOR
THE APPLICANT:
Adv. D Crampton
Instructed
by TMJ Attorneys
FOR
THE RESPONDENT:
Adv. P Dutton
Instructed
by Mdlele Inc
[1]
No 32 of 2000
[2]
Bundle of documents page 44
[3]
Bundle of documents pages 45-46
[4]
No 32 of 2000
[5]
2004
(1) SA 222 (SCA)
[6]
[2015] ZASCA 24
[7]
Para 34