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[2018] ZALCJHB 74
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Majavu v Lesedi Municipality and Others (J1512/17) [2018] ZALCJHB 74 (6 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1512/17
In
the matter between:
SANDI
MAJAVU
Applicant
and
LESEDI
LOCAL MUNICIPALITY
First Respondent
ISAAC
RAMPEDI
N.O
Second Respondent
SPEAKER OF LESEDI LOCAL
MUNICIPAL COUNCIL
Third Respondent
Heard:
20 February 2018
Delivered:
6 March 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
In his application, the applicant, Mr Sandi Majavu (Majavu) seeks an
order declaring his dismissal and all other preceding disciplinary
steps taken in that regard to be null and void. The application is
unopposed.
Background:
[2]
In support of this application, Majavu averred the following;
2.1.
He was prior to his dismissal, employed by Lesedi Local Municipality
(Municipality) as a Senior Procurement Officer.
2.2.
During 2015, the Executive Mayor had approached him to facilitate the
procurement of services through a service provider that had directly
forwarded a quotation to his office contrary to the Municipality’s
procurement codes prescripts.
2.3.
In view of the fact that the said service provider was not on the
Municipality’s
database, or the Procurement Panel, he had
refused to accede to the Executive Mayor’s request and/ or
instruction.
2.4.
There were other unjustified requests that the Executive Major had
made,
which were equally refused by him. Moreover, there were other
irregular requests made by the Acting Municipal Manager in respect
of
remedial work that was to be performed on behalf of the Municipality.
Those requests were likewise refused by him on basis that
they did
not conform to the requirements of procurement prescripts.
2.5.
As a consequence of him insisting on complying with the law and the
Municipality’s
codes, the senior officials of the Municipality
elected to ill-treat him and subject him to occupational detriment.
These included
taking away some of his responsibilities and the
making of unwarranted deductions from his salary.
2.6.
At some point, he had confronted the Municipality’s Chief
Financial
Officer (CFO) to protest the purported unwarranted
deductions, resulting in an emotionally charged exchange of words. As
a result
of, on 14 November 2016, the Municipality took a
decision to place him on precautionary suspension.
2.7.
The suspension was supposed to be for a duration of three months to
allow
the Municipality to conclude its investigations. However, the
three months came and went without the Municipality preferring any
charges of misconduct against him.
2.8.
Aggrieved by the Municipality’s inaction, he had referred an
unfair
suspension dispute to the Commission for Conciliation and
Arbitration (CCMA). As a result of his referral, the Municipality
then
scheduled a disciplinary hearing for 3 March 2017.
2.9.
At the disciplinary hearing, he had raised a preliminary point
contending
that the Acting Municipal Manager lacked the authority to
institute corrective measure against him as he was not lawfully
appointed.
The preliminary point was dismissed by the chairperson of
the disciplinary hearing.
2.10.
Aggrieved by the ruling of the chairperson, he had approached this
Court on urgent basis
seeking to interdict the disciplinary hearing
on grounds that the process would result in a null and void outcome
based on the
fact that the Acting Municipal Manager continued to
occupy his position unlawfully. That application was dismissed by Van
Niekerk
J on 22 March 2017.
2.11.
On 22 March 2017, the Municipality made known its intention
to proceed with
the disciplinary hearing against him. He then
launched a second application to interdict the disciplinary process.
The second application
came before Snyman AJ on 4 May 2017,
who likewise dismissed the application on grounds that the matter was
re judicata.
2.12.
On 22 May 2017, the Municipality reconvened the
disciplinary hearing. He elected
not to participate in the
disciplinary process on grounds that the proceedings were a nullity.
2.13.
On 14 June 2017, the Municipality sent a letter informing
him of its intention
to terminate the employment relationship based
on the finding of guilt and a sanction of dismissal handed down by
the chairperson
of the disciplinary hearing.
The
submissions:
[3]
Majavu’s main contention is that the Acting Municipal Manager’s
appointment was contrary to the relevant legislative
framework which
regulates the appointment of acting municipal managers. Because the
appointment of the Acting Municipal Manager
was
ultra vires,
the
cumulative effect thereof was that he lacked the legal authority to
take corrective measures against him. His argument is further
based
on the following:
3.1.
The appointment of municipal
managers is regulated by the provisions of section 54A
[1]
of the Local Government: Municipal Systems Act.
[2]
Thus, in terms of the provisions of section 54A, an acting Municipal
Manager may not occupy the vacant position for a period exceeding
three months.
3.2.
Since the Acting Municipal Manager was appointed in terms of the
Council’s
resolution dated 29 October 2015, his
tenure terminated on or about 29 January 2016, and the
Municipality had
not sought an extension from the Provincial MEC
responsible for local government in terms of the provisions of
subsection (2A)(b).
3.3.
Instead of the Municipality approaching the MEC in terms of the
provisions
of subsection (2A)(b), it purported to extend the tenure
of the Acting Municipal Manager through a resolution of Council on
30 March 2016,
and an extension in that manner was not
permissible in law and in particular, in terms of the Local
Government: Municipal Systems
Act.
3.4.
In terms of the provision of
section 55(1)(g)
[3]
of the Local Government: Municipal Systems Act, the Municipal Manager
as the head of administration had the legal authority to
discipline
employees of the Municipality. The Municipal Manager must however be
lawfully appointed in order to exercise the power
bestowed upon him
by the provisions of section 55 of the Local Government: Municipal
Systems Act.
3.5.
Because the tenure of the Acting Municipal Manager was unlawful, the
decision to institute disciplinary action against him, the
appointment of the chairperson and the prosecution of the charges and
the resultant dismissal were null and void.
The
legal position and evaluation:
[4]
There are several inherent difficulties faced by Majavu in this
application irrespective of the fact that it remains unopposed.
The
first is that the Court must satisfy itself that it has the requisite
jurisdiction to grant relief sought, even if a matter
is unopposed.
The rationale is quite obvious, it being that whatever order the
court issues in the absence of jurisdiction, such
an order would be
of no force and effect.
[5]
A further difficulty, which is
also aligned to the issue of jurisdiction, is that it is not
mentioned in either the Notice of Motion
or the founding affidavit as
to which statutory provisions were relied upon in bringing this
application
[4]
.
Majavu challenged his dismissal on account of it being a nullity. One
can only assume that as a result of the decision to dismiss
and
preceding steps in that regard having allegedly been taken by a
person lacking the authority to do so, his contention is that
the
dismissal was invalid, hence the claim of nullity
[5]
.
Whether that claim is grounded in the provisions of sections 157 and
158 of the Labour Relations Act (LRA)
[6]
remains unclear though.
[6]
The above concerns are raised
within the trite principle that even if the Court may have
jurisdiction under these provisions, it
does not automatically follow
that the issues referred would be determined, specifically in view of
the availability of alternative
avenues to resolve those issues. In
this case, Majavu has since been dismissed, and the Court is thus
obliged to ascertain whether
the impugned decision is one that would
normally resort under the definition of dismissal or unfair labour
practice as defined
in Chapter VIII of the LRA, irrespective of the
fact that he may have labelled it as a legality, lawfulness, or
nullity challenge
[7]
.
[7]
It can be accepted for a moment
that the decision to institute disciplinary proceedings against
Majavu and to dismiss him, consists
of an action by the local
authority as an organ of state acting in its capacity as an employer,
and thus falls within the purview
of the court’s powers under
the provisions of section 157(2) (b) of the LRA
[8]
.
[8]
In
Public
Servants Association of South Africa obo De Bruyn v Minister of
Safety and Security and Another
[9]
,
it was held that;
“
The
supposition, that public servants had an extra string to their bow in
the form of judicial review of administrative action
i.e
.
acts and omissions by the state
vis-à-vis
public
servants, evaporated when the Constitutional Court in
Chirwa
v Transnet Ltd and Others
,
held
that the dismissal of a public servant was not ‘an
administrative act’ as defined in PAJA and therefore not
capable
of judicial review in terms of that Act.
Any
uncertainty regarding the interpretation of the
Chirwa
judgment
was removed in the subsequent decision in
Gcaba
v Minister for Safety and Security and Others
.
The
result is that a public servant is confined to the other remedies
available to him or her.”
[10]
And,
“
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 section 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 and also other applicable statutes.”
[11]
[9]
In
Chirwa
v Transnet Ltd and Others
[12]
,
Skweyiya
J had long held that;
‘
...
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.’
[10]
In
Hendricks
v Overstrand Municipality and Another
[13]
,
the Labour Appeal Court in re-emphasising the above principles as
enunciated in
Gcaba
and
Chirwa
held that;
‘
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. ...’
[11]
Flowing from the above
authorities, and further from a reading of the majority decision in
Steenkamp
[14]
and the judgment of the apex court in
National
Union of Metal Workers of South Africa v Intervalve (Pty) Ltd
and Others
[15]
,
the legal position should be clearer in regards to employees seeking
to challenge employer’s decisions to dismiss on account
of
either illegality, unlawfulness or nullity.
[12]
The lessons from
Intervalve
is that the provisions of the LRA
make conciliation a mandatory prerequisite for a matter to be
referred to the CCMA/Bargaining
Council for arbitration and/or to
this Court for adjudication. Furthermore, in ordinary circumstances,
this Court would lack jurisdiction
to entertain a dispute where the
applicant had failed to comply with those basic statutory
requirements.
[13]
In
Steenkamp,
it was further held that;
“
The
LRA created special rights and obligations that did not exist at
common law. One right is every employee’s right not to
be
unfairly dismissed which is provided for in section 185. The LRA also
created principles applicable to such rights, special
processes and
fora for the enforcement of those rights. The requirement for the
referral of dismissal disputes to conciliation
is one of the
processes created by the LRA. The CCMA, bargaining councils and the
Labour Court are some of the fora. The principles,
processes,
procedures and fora were specially created for the enforcement of the
special rights and obligations created in the
LRA. Indeed, the LRA
even provides for special remedies for the enforcement of those
rights and obligations. The special remedies
include interdicts,
reinstatement and the award of compensation in appropriate cases.
These special rights, obligations, principles,
processes, procedures,
fora and remedies constitute a special LRA dispensation.
[16]
And,
“
I
conclude that invalid dismissals and a declaratory order that a
dismissal is invalid and of no force and effect fall outside the
contemplation of the LRA. Such an order cannot be granted in a case
based on the breach of an obligation under the LRA concerning
a
dismissal.”
[17]
[footnotes omitted]
[14]
In this case, Majavu essentially seeks a declaratory order, which on
the principles enunciated in the authorities referred
to above is
impermissible. His claim came about in circumstances where;
a)
On no less than two occasions he had approached this Court on
an
urgent basis, to challenge the authority of the Municipality to
discipline him on the allegations that the Acting Municipal
Manager
did not have the requisite authority to institute disciplinary steps
against him,
b)
On the second occasion, his application was dismissed by Snyman
AJ
(as opposed to struck off the roll). His application for leave to
appeal in that regard was also dismissed, and his third application
to interdict the disciplinary proceedings pending an appeal against
Snyman AJ’s order was equally dismissed.
c)
One would have expected that in the face of his applications
having
been dismissed, he would have availed himself for a disciplinary
hearing as the basis of his challenge to that hearing had
been dealt
with by the Court. He nonetheless failed to attend the enquiry, on
the very same basis that were decisively dealt with
by Snyman AJ.
d)
Even more instructive, Snyman AJ had dismissed his second application
on the grounds that the matter other than lacking urgency was also
res judicata
. As to the reason Majavu would want to approach
the Court again on effectively the same grounds his dismissal was
deemed to be
a nullity, when that issue was decisively dealt with by
Snyman AJ is incomprehensible.
e)
The fact that Majavu has since been dismissed in his absence,
makes
it even more incomprehensible as to the reason he would want to
approach the Court in the manner he had done, when he had
all the
other avenues available to him.
f)
As stated in
Steenkamp,
the LRA does not
contemplate a claim for an invalid dismissal, and by implication, a
dismissal deemed to be a nullity. An employee
who is aggrieved by his
or her dismissal should approach any competent forum with a referral
of unfair dismissal as regulated in
the provisions of section 191
[18]
of the LRA. As pointed out by Cameron J in
Intervalve,
where there is no referral for conciliation in terms of the
provisions of the LRA, this Court is not at liberty to assume
jurisdiction
of the dispute.
[15]
In the end, and as already pointed out, it did not help matters that
Majavu failed to articulate any grounds upon which he
sought relief.
The allegation relied upon in contending why he should not have been
subjected to discipline or dismissed for that
matter, are matters
that could have been placed before the South African Local Government
Bargaining Council (SALGBC) for ventilation,
together with the
substantive fairness of that dismissal. Majavu was dismissed in
June 2017, and he is yet to refer a dispute
to the Bargaining
Council. Further approaches to this Court for relief are clearly
ill-conceived. The application therefore
stands to be dismissed
for lack of jurisdiction.
Order:
[16]
In the premises, the following order is made:
1.
The applicant’s application is dismissed.
____________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. F.R Memani
Instructed
by:
Wakaba & Partners Incorporated
For
the 1
st
, 2
nd
and 3
rd
Respondents:
No
Appearance
[1]
Section 54A:
Appointment of
municipal managers and acting municipal managers.
—
(
1)
The municipal council must appoint—
(a) a municipal
manager as head of the administration of the municipal council; or
(b) an acting
municipal manager under circumstances and for a period as
prescribed.
(2)
A person appointed as municipal manager in terms of subsection (1)
must at least
have the skills, expertise, competencies and
qualifications as prescribed.
(2A)
(a) A person appointed in terms of subsection (1) (b) may not be
appointed to act for a period
that exceeds three months.
(b) A municipal council may, in
special circumstances and on good cause shown, apply in writing to
the MEC for local government
to extend the period of appointment
contemplated in paragraph (a), for a further period that does not
exceed three months.
(3)
A decision to appoint a person as municipal manager, and any
contract concluded
between the municipal council 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; or
(b) the appointment
was otherwise made in contravention of this Act.
[2]
Act 32 of 2000, as amended
[3]
Section 55.
Municipal
managers
. —
(1)
As head of administration the municipal manager of a municipality
is,
subject to the policy directions of the municipal council,
responsible and accountable for—
(a)
...
(g)
the maintenance of discipline of staff;
[4]
See Gcaba v Minister for Safety and Security and Others
2010 (1) SA
238
(CC);
2010 (1) BCLR 35
(CC); (2010) 31 ILJ 296 (CC);
[2009] 12
BLLR 1145
(CC) at para 75, where it was held that;
“
Jurisdiction is determined on
the basis of the pleadings, as Langa CJ held in Chirwa, and not the
substantive merits of the case.
If Mr Gcaba’s case was heard
by the High Court, he would have failed for not being able to make
out a case for the relief
sought, namely review of an administrative
decision. In the event of the Court’s jurisdiction being
challenged at the outset
(in limine), the applicant’s
pleadings are the determining factor. They contain the legal basis
of the claim under which
the applicant has chosen to invoke the
Court’s competence. While the pleadings including, in motion
proceedings, not only
the formal terminology of the notice of
motion, but also the contents of the supporting affidavits must be
interpreted to establish
what legal basis of the applicant’s
claim is. It is not for the court to say that the facts asserted by
the applicant would
sustain another claim, cognisable only in
another court. If, however the pleadings, properly interpreted
establish that the supplicant
is asserting a claim under the LRA one
that is to be determined exclusively by the Labour Court, the High
Court would lack jurisdiction”.
[5]
Steenkamp and Others v Edcon Limited (2016) 37 ILJ 564 (CC);
2016
(3) BCLR 311
(CC);
[2016] 4 BLLR 335
(CC);
2016 (3) SA 251
(CC) at
para [189]
[6]
Act 66 of 1995, as amended
[7]
PSA obo
Members v MEC for Agricultural and Rural Development (North West
Province)
(JR634/13)
[2017] ZALCJHB 480 (12 October 2017) at para [37]
[8]
Section 157(2)(b) of the LRA states:
“
The Labour Court has
concurrent jurisdiction with the High Court in respect of any
alleged or threatened violation of any fundamental
right entrenched
in Chapter 2 of the Constitution of the Republic of South Africa,
1996, and arising from
(a) …
(b) any dispute over the
constitutionality of any executive or administrative act or conduct,
or any threatened executive or administrative
act or conduct, by the
State in its capacity as an employer; …”
[9]
[2012] 9 BLLR 888
(LAC); (2012) 33 ILJ 1822 (LAC)
[10]
At para
[28]
[11]
At para
[30]
[12]
(2010) 31 ILJ 296 (CC) at para 18
[13]
(2015) 36 ILJ 163 (LAC) at para 10 – 12.
[14]
supra
[15]
[2014] ZACC 35
;
2015 (2) BCLR 182
(CC);
[2015] 3 BLLR 205
(CC);
(2015) 36 ILJ 363 (CC)
[16]
At para
[105]
[17]
At para
[136]
[18]
Section 191:
Disputes about
unfair dismissals and unfair labour practices
(1) (a)
If there is a dispute about the fairness of a dismissal,
or a
dispute about an unfair labour practice, the dismissed employee or
the employee alleging the unfair labour practice may
refer the
dispute in writing to -
(i)
a council, if the parties to the dispute fall within the registered
scope of that council; or
(ii) the
Commission, if no council has jurisdiction.
(b) A
referral in terms of paragraph (a) must be made within -
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days of the employer making a final decision to dismiss or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes
the unfair labour practice or, if it is a later date,
within 90 days of the date on which the employee became aware of the
act
or occurrence.
…
(4)
The council of the Commission must attempt to resolve the dispute
through conciliation.
(5)
If a council or a commissioner has certified that the dispute
remains unresolved, or if 30 days or any further period as agreed
between the parties have expired since the council or the Commission
received the referral and the dispute remains unresolved-
(a)
the council or the Commission must arbitrate the dispute at the
request
of the employee if -
(i)
the employee has alleged that the reason for dismissal is
related to
the employee’s conduct or capacity, unless paragraph (b)(iii)
applies;
…