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[2018] ZALCJHB 103
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Thaba Chweu Local Municipality v Koma and Others (J2106/2013) [2018] ZALCJHB 103 (13 March 2018)
Not Reportable
Case
NO: J 2106/2013
In the matter between:
THABA
CHWEU LOCAL MUNICIPALITY
Applicant
and
KOMA,
BURTON SHOLE
First Respondent
SAMWU
Second
Respondent
MEMBERS
OF SAMWU LISTED WHO’S
NAMES
ARE LISTED IN ANNEXURE ‘A’
Third To Further Respondents
Heard:
11 May 2017
Delivered:
13 March 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
During 2012, internal discussions were held
at the level of Local Labour Forum (comprising Management, SAMWU and
IMATU) regarding
the placement of employees within the applicant’s
restructured establishment. On 5 December 2012, the
applicant,
represented by the first respondent and its then Acting
Municipal Manager (Koma), entered into a settlement agreement with
SAMWU
representing the third to further respondents. The agreement
provides as follows;
‘
SETTLEMENT
AGREEMENT
In the matter between South African
Municipal Workers Union
And
Thaba Chweu Municipality
Establishment of the settlement
agreement
·
Council
Resolution A66/2012
·
Local
Labour Forum LLF (Minutes of the Meeting)
·
Categorisation
and Job Evaluation Wage Curve Collective Agreement
NOW THEREFORE THE PARTIES AGREE ON THE
FOLLOWING;
1.
To
finalize the placement of staff before the end of January 2013. The
commencement date for this agreement is 01 December 2012
2.
The
employer party will provide cost implications of the staff movement
as a result of placement process.
3.
The
employer party will in an absence of Job Evaluation of posts
benchmark against a municipality of a similar size
4.
The
party is committed to ensure that all factors around the placement
process are handled with objectivity and in good faith
5.
The
parties agree that all negative and positive factors, comparison with
other municipalities as best practice will be taken into
consideration
6.
Should
the Employer party fail to honour this agreement the employee party
will exercise its rights
7.
All
placement letters will be issued on 3 January 2013’
[2]
It was common cause that placement letters
were issued by Koma to SAMWU members in terms of this agreement. On
25 March 2015,
the applicant approached the Court in terms
of the provisions of section 158 (1) (h) of the Labour Relations Act
to seek an order
in the following terms;
“…
1.
Reviewing
and setting aside the decision by the First Respondent to conclude,
on behalf of the Applicant, the settlement agreement,
2.
Reviewing
and setting aside the decision of the First Respondent to issue
placement letters to the Third to further Respondents
pursuant the
settlement agreement
3.
Declaring
the settlement agreement unlawful, null and void,
4.
Condoning
the late filing of this application”
[3]
The late filing of the review application,
together with that of the answering and replying affidavits was
condoned in terms of
an order issued by Van Niekerk J on
30 August 2016. The review application according to the
applicant was preceded by
the following events;
3.1
The discussions between the parties had
commenced sometime in 2012. A Placement Committee (a sub-committee of
the Local Labour Forum)
comprising of all stakeholders was formed and
tasked with the facilitation of discussions surrounding the placement
of employees,
and to compile a report to be presented to the
Municipality Council.
3.2
The Placement Committee was unable to reach
any agreement and the parties had reached deadlock. The matter never
even reached the
Municipality Council for its consideration.
3.3
On 5 December 2012, SAMWU members
embarked on an unprotected strike, demanding that they be placed in
accordance with
their proposals as placed before the Placement
Committee. During the strike, electricity and water supply services
to communities
was switched off, resulting with members of the
communities confronting the Municipality to demand restoration of the
services,
failing which legal action would be taken.
3.4
With a view of ending the strike, Koma held
meetings with SAMWU and its members. The latter had insisted that the
strike would only
be ended and services to communities restored when
the Municipality acceded to their demands. They had further demanded
that they
be issued with placement letters before the end of
January 2013.
3.5
The applicant alleges that Koma was in the
light of the circumstances, pressured into entering into the impugned
settlement agreement.
He subsequently issued placement letters as per
SAMWU’s demands.
3.6
Koma could however not implement the
agreement as it was not sanctioned by the Municipality Council. The
Council accordingly refused
to honour it, as it viewed it and the
subsequent issuing of the placement letters as being unlawful.
3.7
A further unprotected strike took place on
3 April 2013 to force the applicant to honour the agreement
and appointments
made in terms of the placement letters. When
ultimatums were issued by Koma, SAMWU subsequently referred a matter
of mutual interest
dispute to the SALGBC under case number MPD041303.
A settlement agreement was reached at the SALGBC in terms of which
SAMWU withdrew
the referral unconditionally.
3.8
Koma was subsequently placed on special
leave in April 2013 as a result of signing the settlement
agreement and issuing of
placement letters. It is further alleged
that he was placed on special leave as a consequence of his failure
to properly run the
affairs of the applicant. It was common cause
that he had resigned in May 2013. When the new Acting Municipal
Manager took
over, all the vacant posts within the applicant’s
establishment were advertised. This sparked an urgent application by
SAMWU
on 3 October 2013.
3.9
On 8 October 2013, Van Niekerk J
confronted with the unopposed urgent application under the present
case number, granted
a final order compelling the applicant to comply
with the terms of the settlement agreement and the placement letters,
and effecting
back-pay to employees.
3.10
At the time that the final order was
obtained, the applicant was essentially in a dysfunctional state,
with personnel having come
and went in the position of Municipal
Manager. It is further alleged that the applicant’s legal
department also failed to
defend matters brought to courts due to a
variety of reasons. On 6 December 2013, SAMWU obtained a
further order from
this Court calling upon Koma to appear before the
Court to show cause why he should not be found to be in contempt of
Van Niekerk
J’s order of 8 October 2013.
3.11
On 10 February 2014, the applicant filed an
application for rescission. The matter came before Snyman AJ on
15 October 2014,
who had issued an order
inter
alia
dismissing SAMWU’s contempt
application and rescinding Van Niekerk J’s order of
8 October 2013. The Municipality
was further directed to
file this application within six weeks. SAMWU’s application for
leave to appeal was dismissed, and
a subsequent petition to the
Labour Appeal Court was refused on 18 August 2015.
The
review grounds:
[4]
The applicant seeks to have the settlement
agreement declared null and void on
inter
alia
, grounds of legality, which it was
contended was a principle applicable to all exercise of public power,
requiring that all public
functionaries exercise their powers in a
lawful and rational manner. It further relies on the fulfilment of
its constitutional
and statutory obligations to ensure lawfulness,
accountability and transparency in its administration.
[5]
The
applicant further relies on the provisions of section 195 of the
Constitution of the Republic
[1]
,
in terms of which, where it is made aware of a potential
irregularity, there is a duty upon it to investigate and where
necessary,
to correct any unlawfulness through appropriate avenues.
[6]
In line with the above provisions, it was
contended that the appointments and placement of employees subsequent
to the settlement
agreement;
·
did not comply with applicable legislation
and or policies of the applicant, and in particular sections 55 and
56 of the Systems
Act;
·
that those appointments/placements were
arbitrary as some employees were appointed to non-existing positions
as per the applicant’s
organogram, whilst others were promoted
about three levels above their current positions;
·
that Koma had no authority to bind the
applicant to the agreement, and further that the agreement was not
authorised and/or condoned
by the applicant’s council;
·
the executive authority to appoint staff
vests in the municipal council, and to the extent that the settlement
agreement in this
case divested the municipal council of its
executive powers, it was unlawful;
·
the
agreement, to the extent that it obliged the applicant to employ some
employees permanently, also contravened section 66 (3)
of the Local
Government: Municipal Systems Act
[2]
(The Systems Act) and was also unlawful.
[7]
SAMWU opposed the application on the
following grounds;
7.1
The Council resolved in 2012 to review and
change its organisational structure. A placement committee comprising
of all stakeholders
was established with the purpose of reviewing the
organisational structure, and to place employees into newly created
organisational
structures;
7.2
The Placement Committee in discharging its
duties was bound by the South African Local Government Association
Council Placement
Policy which was a collective agreement that was
binding on the parties. On 1 October 2012, the Placement
Committee resolved
that the placement of employees would be
considered by the Local Labour Forum or a subcommittee of the Forum,
provided that the
committee was composed of no more than eight
persons;
7.3
The committee was to compile a report on
how employees should be placed in new structures, and once the
committee had submitted
its report to the Local Labour Forum, it was
to be submitted to the Municipal Manager for implementation;
7.4
To
the extent that the placement plan formulated by the committee was
approved by the Local Labour Forum, it was then implemented
by Koma
as agreed to in accordance with the recommendations made on
20 November 2012
[3]
;
7.5
The settlement agreement was therefore a
valid agreement stemming from the decision of the Committee and the
Local Labour Forum,
and the Council was not, in accordance with the
recommendations made by the Local Labour Forum, required to approve
the placement
plan. The responsibility of approving the placement
plan accordingly rested on the committee and the Local Labour Forum
and was
therefore to be implemented by Koma;
7.6
It was denied that the committee was
required to table the placement plan/report to the Council, or that
it had not reached consensus
on placements. It was further denied
that Koma was induced to sign the settlement agreement by means of
illegal strikes, and/or
that he required the Council’s approval
to conclude that agreement. It was contended that Koma had the
necessary authority
to bind the applicant in his capacity as the head
of administration and also in terms of the powers delegated to him by
the Council;
7.7
The provisions of sections 55 (1) (e) and
59 of the Systems Act did not place an obligation on the Council to
approve or authorise
the agreement relating to placement of
employees, as the power to appoint staff was conferred to Koma by
virtue of his delegated
authority.
The
legal framework and evaluation:
[8]
The
Labour Court may in terms of section158(1)(h) of the LRA, “
review
any decision taken or any act performed by the state in the capacity
as employer on such grounds that are permissible in
law”
.
In
Hendricks v
Overstrand Municipality
[4]
,
it was held that a decision
taken by the state in its capacity as employer could be reviewed on
any grounds permissible in law,
if no other remedy is available. The
grounds permissible in law were identified as (i) those listed in
PAJA, provided the decision
constituted an administrative action;
(ii) in terms of the common law in relation to domestic or
contractual disciplinary proceedings;
or (iii) on the basis of the
constitutional principle of legality
.
[9]
To
the extent that this matter is all about the placement and/or
appointment of employees in the Municipality’s establishment
in
terms of the impugned settlement agreement, it is apparent that the
applicant is entitled to approach this Court on the grounds
of
legality if it was of the view that Koma did not have the requisite
authority to enter into it. It is further accepted that
the applicant
has no other available remedy. The principles stated in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[5]
remains apposite to the
extent that SAMWU insists that the settlement agreement remains
enforceable.
[10]
As also correctly pointed out on behalf of
the applicant, the starting point in the determination of this
application is section
195 of the Constitution, in terms of which
accountability, transparency, and high standard of professional
ethics are required
of the Municipality and its functionaries in the
management of its activities as an organ of state. Other pertinent
provisions
of the Systems Act are;
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-
…
(e)
the appointment of staff other than those referred to in section 56
(a),
subject to the Employment Equity Act, 1998 (Act 55 of 1998);”
Section 66
‘
Staff establishments
(1) A
municipal manager, within a policy framework determined by the
municipal council and subject to any
applicable legislation, must-
(a)
approve a staff establishment for the municipality;
(b)
provide a job description for each post on the staff
establishment;
(c)
attach to those posts the
remuneration and other conditions of service as may be determined in
accordance with any applicable labour
legislation; and
(d)
establish a process or mechanism to regularly evaluate the staff
establishment and, if necessary, review
the staff establishment and
the remuneration and conditions of service.
(2) Subsection
(1) (c) and (d) do not apply to remuneration and conditions of
service regulated by employment
contracts referred to in section 57.”
Section
67
‘
Human resource
development
(1) A
municipality, in accordance with applicable law and subject to any
applicable collective agreement,
must develop and adopt appropriate
systems and procedures to ensure fair, efficient, effective and
transparent personnel administration,
including-
(a)
the recruitment, selection and appointment of persons as staff
members;
(b)
service conditions of staff;
(c)
the supervision and management of staff
(d)
the monitoring, measuring and evaluating of performance of staff
(e)
the promotion and demotion of staff;
(f)
the transfer of staff;
(g)
grievance procedures;
(h)
disciplinary procedures
(i)
the investigation of allegations of misconduct and complaints against
staff
(j)
the dismissal and retrenchment of staff, and
(k)
any other matter prescribed by regulation in terms of section 72.
[Sub-s.
(1) amended by s. 38 of Act 51 of 2002.]
(2) Systems and
procedures adopted in terms of subsection (1), to the extent
that they deal with matters
falling under applicable labour
legislation and affecting the rights and interests of staff members,
must be consistent with such
legislation.
(3) Systems and
procedures adopted in terms of subsection (1), apply to a person
referred to in section 57 except
to the extent that they are
inconsistent with that person's employment contract.
(4) The
municipal manager must-
(a)
ensure that every staff member and every relevant representative
trade union has easy access to a copy
of these staff systems and
procedures, including any amendments;
(b)
on written request by a staff member, make a copy of or extract from
these staff systems and procedures,
including any amendments,
available to that staff member; and
(c)
ensure that the purpose, contents and consequences of these staff
systems and procedures are explained
to staff members who cannot
read.”
[11]
The
conclusions drawn from the provisions of section 66 in
Dihlabeng
Local Municipality v Nthute and Others
[6]
are that;
“
Section
66 clearly envisages that the municipal manager will draw up a
document reflecting all the posts within the establishment
as well as
a job description for each post, so that there can be no doubt as to
the staff compliment of the municipality….
The
logical conclusion of this is that the municipality cannot appoint
people to posts that do not appear in the document evidencing
the
staff structure. Such a document would be important in another
respect. It is meant to ensure that there would
be no
unauthorised appointments. In other words, appointments made
outside the established and approved structure will be
unauthorised”
[7]
.
[12]
SAMWU relies on the Placement Committee’s
resolution that the placement of employees shall be considered by the
Local Labour
Forum or its sub-committee, which had in turn compiled a
report on how the placements in the new structure were to take place.
It was argued that since the report was placed before the Local
Labour Forum, which was in turn submitted to the Koma for
implementation,
that should have been the end of the matter, to the
extent that Koma had turned the report into a settlement agreement,
and that
there was no obligation on him to seek the approval of the
Municipality Council.
[13]
SAMWU’s arguments have to be
considered within the context of the role and powers of the Local
Labour Forums as established
in terms of the SALGBC Main Collective
Agreement. In terms of clause
2.8.11 of the Agreement, every
employer must establish a Local Labour Forum with equal
representation from the trade unions and
the employer. The trade
unions’ representation shall be divided in proportion to their
respective membership in that Council/employer.
Employer
representatives on the other hand shall consist of Councillors and of
Management (as set out in clause 2.4.2.1 –
which specifies the
Municipal Manager and persons appointed as managers directly
accountable to Municipal managers in terms of
section 57 of the
Systems Act).
[14]
The
powers and functions of a Local
Labour Forum are set out in clause 2.8.2 of the Main Agreement. In
essence, the Local Labour Forum
have the powers and functions;
·
To negotiate and/or consult on the following matters;
Ø
Matters of mutual concern pertaining to the municipality and
which do not form the subject matter of negotiations at the SALGBC;
Ø
Matters referred to it by the SALGBC;
Ø
Minimum Service Level Agreements;
[15]
As I understand the position, the powers
and scope of Local Labour Forums are only limited to matters relating
to the work places
and which are not the subject of bargaining at
either national and or provincial level, and in terms of clause
2.8.2.2,
disputes over what is negotiable and what are the
matters for consultation and over whether a specific process
constitutes sufficient
consultation are to be resolved through the
dispute resolution mechanism of the SALGBC.
[16]
Insofar as the issue of placements is
concerned, such placement in accordance with clause 3.2 of the SALGBC
Placement Policy (An
agreement entered into between South African
Local Government Association and the Unions) shall be considered by
the Local Labour
Forum or Sub-Committee of that Forum. This clause
further provides for the establishment of the Placement Committee,
with its main
terms of reference being to ‘
consider
and reach consensus regarding the placement of existing employees
into posts in the new structures
. It is
further tasked with striving to reach consensus on the staff
placement. Where however consensus cannot be reached, the Council’s
proposal will prevail and be published.
[17]
In this case, it can be accepted from
annexures ‘TCLM1’ and ‘TCLM2’ to the founding
affidavit that to some
extent, the Placement sub-committee discussed
and considered the placement of employees on 1 October 2012
and 12 November 2012.
The only issue is whether consensus
was reached, resulting in the settlement agreement which is the
subject of the dispute, and
whether even if that was the case, there
was no further obligation on Koma to get the approval of the Council
prior to implementation
of any recommendations.
[18]
The applicant’s contention is that
Koma was not authorised to enter into the agreement and accordingly,
it was not only unlawful
for him to do so, but that the agreement is
unenforceable on account of it being null and void.
[19]
Koma in his confirmatory affidavit to the
answering affidavit, which was filed after the applicant had filed
its replying affidavit,
averred that the applicant’s Council
had resolved to establish the Local Labour Forum and a Placement
Committee. The Committee
made recommendations on the placement of
staff into the new organisational structure of the applicant and
based on those recommendations
approved by the Local Labour Forum, he
had entered into the agreement and issued placement letters.
[20]
Koma denied that he had signed the
agreement under pressure and averred that he had acted based on the
recommendations of the committee.
He further averred that the
applicant had approved a budget to finance the placement of the
employees and it was untrue that the
placements were unbudgeted for
or that they would cause financial problems for the applicant. He
further averred that the Council
was represented in the Local Labour
Forum and the Placement Committee; that the Councillors were part of
the process of placing
the employees in the new organisational
structure, and further that the Systems Act and Delegations of
Authority by the applicant’s
Council conferred powers upon him
as Municipal Manager to appoint staff. He contended that he did not
need the approval of the
Council to appoint staff prior to
implementing the placement plans as agreed to by the Committee.
[21]
Having objected to the belated filing of
the confirmatory affidavit, the applicant (through a replying
affidavit of its acting Municipal
manager, Mokoena) nonetheless in
its reply contended that Koma left the applicant’s employ under
acrimonious circumstances.
He had been placed on special leave as a
result of the unauthorised settlement agreement. When the Council was
about to place him
on special leave, and realising the possibility of
disciplinary action, Koma chose to resign.
[22]
Mokoena denied that the placement committee
ever reached consensus on the placement of employees as the parties
had reached deadlock
on these issues as evident from the meetings of
1 October and 12 November 2012, and further denied
that the placement
committee had ever made recommendations which were
approved by the Local Labour Forum. It was also denied that the
applicant ever
had a new structure or that the Council had ever
approved any organogram into which the employees were to be placed.
[23]
Mokoena further denied that the applicant
had approved a budget to finance the placement of the employees as
the Council never approved
any such budget. It was pointed out that
at the time, the applicant was under financial distress and
undergoing a turnaround plan
under the assistance of the provincial
Department of COGTA, Treasury and the Enhlanzeni District
Municipality due to lack of funds.
Mokoena further averred that the
manner in which Koma issued the placement letters was unlawful as he
did not have the authority
to do so. He contended that it was
unlawful for a municipal manager to make appointments without
advertising the posts.
[24]
The role and powers of the Local Labour
Forum (or Sub-committees), and its terms of reference in accordance
with clause 3.2 of the
SALGBC Placement Policy, is to ‘
consider
and reach consensus regarding the placement of existing employees
into posts in the new structures
. This
implies firstly that the Forum must reach consensus, and further that
there must be a new structure. Consensus can only imply
that all the
parties in the sub-committee,
viz
,
Management, SAMWU and IMATU must have been able to reach an agreement
on the placement of employees. Curious with the settlement
agreement
is that it was only entered into between SAMWU and the applicant as
represented by Koma, and it is not apparent from
the papers why IMATU
was excluded, if the Forum/Placement Committee had indeed reached
consensus.
[25]
SAMWU nonetheless relies on the minutes of
1 October 2012 and 12 November 2012, in
contending that consensus
was reached. In regard to the minutes of
1 October 2012, it contended that this indicated that there
was consensus to
grant the Placement Committee a mandate to place
employees into newly approved organisational structure, to compile a
report on
how employees were to be placed, and to submit it to the
Forum. The minutes of 12 November 2012 merely indicated
that
the meeting was postponed to 15 November 2012, and
that a management meeting was to be held on 14 November 2012
to make submissions that were to be placed before the Placement
Committee. There is no evidence that a meeting took place on
14 November 2012
as scheduled.
[26]
SAMWU further relies on Annexure ‘SM2’
to the answering affidavit, which it contended that the Committee had
finalised
its mandate and sent its recommendations to the Forum which
had approved them and forwarded them to Koma. This annexure is
purportedly
a notice issued by Koma that a special meeting was to be
held on 20 November 2012 to consider
inter
alia
, the issue of placements and the
recommendations purportedly made by the Placement Committee. The
notice further contains plans
which specifies in detail, which
employees are to be placed into which positions
[27]
The veracity of the document relied upon is
disputed by the applicant. The applicant views the document as
fabrication as it never
came to its attention before, including in
countless prior litigation between the parties before this Court, nor
does it bear any
Council’s signature. It was contended that it
was produced for the first time for the purposes of this application.
[28]
Arising from the above, the issue that
remains in contention is the veracity of the purported
recommendations of the Committee as
implemented by Koma. No attempt
was made to explain its origins, and even if it had existed prior to
the signing of the conclusion
of the settlement agreement, it is not
clear from that document which clearly contains recommendations, as
to when those were approved
and by whom. The document on the face of
it appears to be a mere notice, and not minutes. It lists items on
the agenda, including
the issue of placements. As to whether that
meeting took place on 20 November 2012 and who had attended it is
unclear. Significantly
worrying however is that if the Forum held
that meeting, it is not clear how was consensus reached, and why is
it that only SAMWU
and Koma signed that agreement.
[29]
With
the above doubts having been expressed, SAMWU relies on the
delegation of powers document as approved by the applicant, for
the
contention that he did not need its approval to implement the
Placement plans as recommended by the Placement Committee. The
difficulty with this contention as correctly pointed out on behalf of
the applicant is that this argument cannot be sustainable
in view of
the conclusions of Snyman AJ in the contempt application heard on
15 October 2014 and the judgment delivered
on
11 February 2015
[8]
.
[30]
In this case, SAMWU persisted with the
argument that by virtue of the provisions of section 55 of the
Systems Act, Koma was in any
event empowered or had the
necessary delegated authority to bind the applicant to the settlement
agreement, and that with
further consideration to the provisions of
section 59 of the Systems Act, there was no requirement for the
Council to authorise
the agreement relating to the placement of the
employees.
[31]
The
interpretation of section 55 (1) of the Systems Act received
attention in
Manana
v King Sabata Dalindyebo Municipality
[9]
as correctly pointed out by Snyman AJ in the contempt application.
This judgment is instructive in the light of SAMWU’s persistent
approach, and it would be useful to liberally quote from its
paragraphs 15 - 17, where Nugent JA held as follows;
“
The
first submission that was made on behalf of the municipality was that
the resolution to which I have referred is not relevant
because the
power to appoint employees vests in the municipal manager and not in
the municipal council. For that submission counsel
relied on s
55(1)(a)- (e) of the Act – in particular subsection (e).
Confining myself to the relevant part of that subsection
it reads as
follows:
‘
As
head of administration the municipal manager of a municipality is,
subject to the policy directions of the municipal council,
responsible and accountable for – (e) the appointment of staff
…’ “
And,
“
A
municipal council is not capable in practice of exercising its
executive authority by running the day-to-day affairs of the
municipality
and it employs staff to do that on its behalf. In the
past it was common for municipal councils to confer the appropriate
authority
upon their staff by delegation of all or some of its
executive powers. Such a delegation of power does not ordinarily
divest the
delegator of the power to perform the particular function
itself. As the authors of De Smith’s Judicial Review express
it:
‘
[I]t has sometimes
been stated that delegation implies a denudation of authority….
This cannot be accepted as an accurate
general proposition. On the
contrary, the general rule is that an authority which delegates its
powers does not divest itself of
them ….’”
And,
“
In
my view s 55(1) is no more than a statutory means of conferring such
power upon municipal managers to attend to the affairs of
the
municipality on behalf of the municipal council. There is no basis
for construing the section as simultaneously divesting the
municipal
council of any of its executive powers. Indeed, as I have already
pointed out, the Constitution vests all executive authority
–
which includes the authority to appoint staff – in the
municipal council and legislation is not capable of lawfully
divesting it of that power. To the extent that there might be any
ambiguity in the statute in that respect it must be construed
to
avoid that result” (Citations omitted)
[32]
Flowing
from the interpretation of section 55 (1) (e) of the Systems Act as
above, and taking into account the interpretation of
section 66 of
the same act in
Dihlabeng
Local Municipality v Nthute and Others
[10]
as referred to elsewhere in
this judgment, the following conclusions in regard to this matter can
be drawn;
35.1
The role and powers of the Local Labour Forum
,
as a body established in terms of clause 3.2 of the SALGBC Placement
Policy (A collective agreement), is confined to
considering
and reaching consensus regarding the placement of existing employees
into posts in the new structures
. Its
recommendations are merely that, and in the event that it cannot
reach consensus on the staff placement, the Council’s
proposal
would prevail and be published. This can only imply that consensus
must be reached with all the stakeholders in the Forum,
including
IMATU, and where there is no consensus, the Council will have a final
say in the matter. In this case, how it can be
said consensus was
reached when the agreement was only entered into with SAMWU remains
unexplained. Furthermore, the mere fact
that some Councillors were
part of the discussions in the Placement Committee does not imply the
Council’s executive authority
over the matter was divested.
35.2
It is not for a Municipal Manager,
notwithstanding his delegated authority, to willy-nilly implement
recommendations of that Forum
without the say-so of the Council.
Delegated authority cannot be equated with an abdication of the
Council’s executive powers,
authority and final say on the
matter.
35.3
There is no evidence in this case to
suggest that the recommendations of the Local Labour Forum or the
Placement Committee were
placed before the Council for its
consideration, and in fact on SAMWU’s version, there was no
need to do so. SAMWU’s
contention is nonetheless unsustainable
in view of the legal principles referred to above.
35.4
At the time that the settlement agreement
was entered into, it does not appear to be disputed that the
Municipality was in a parlous
and dysfunctional state, requiring the
intervention of the Provincial COGTA MEC, Treasury and other
municipalities. The Municipality’s
finances were in a state of
a mess. The appointment and placement of 100 or so employees in a
restructured establishment at great
financial burden to the
Municipality and the long-suffering rate and tax payers compounded
that parlous state.
35.5
It is either Kobe deliberately acted
unlawfully, or he was clearly out of his depth. He completely
misconstrued his delegated powers
and authority. His insistence that
he did not need the Council’s approval to bind it to the
settlement agreement, issue placement
letters and effectively
implement the Placement Committee’s recommendations is a clear
failure on his part to appreciate
his limited powers or the concept
of delegated authority. He failed to appreciate the need for
accountability, transparency and
the promotion of
efficient,
economic and effective use of resources
as
required of him in terms of the provisions section 195 of the
Constitution when implementing the placement plan. He clearly forgot
that notwithstanding his delegated powers and authority, he was still
in terms of section
55 of the Systems Act, subject to the
policy directions of the municipal council, and that in terms of 66
,
he still needed to make decisions
within a policy framework
determined by the municipal council, and to make decisions subject to
all applicable legislation. In a
nutshell, by failing to get the
Council’s approval; by issuing letters of placement and
haphazardly employing, placing and
in some instances unreasonably
promoting employees to even higher levels, Koma confused the
municipality with his imaginary little
fiefdom, where he could do as
he pleased.
35.6
It is not even necessary to dwell into the arguments surrounding
whether Koma
was cajoled into signing the settlement agreement or
not, or whether consensus was reached by the Committee. What is
sufficient
for the purpose of this application is that in
implementing the recommendations of the Placement Committee without
the need for
approval as he had insisted, he had acted unlawfully,
and in flagrant disregard of his constitutional obligations as
outlined in
section 195 of the Constitution, and the prescripts in
sections 55 and 66 of the Systems Act, thus making the settlement
agreement
not only unlawful but invalid.
35.7
To the extent that in implementing the recommendations he had little
or no
regard to the financial implications for the Municipality,
especially at a time when it was not only dysfunctional but also in a
parlous financial position, Koma equally acted irrationally.
[33]
In the light of the above conclusions, it
follows that the applicant should be entitled to the relief it seeks.
What remains is
the issue of costs. The applicant sought a cost
order, particularly since it held the view that SAMWU approached the
Court with
a view of deceiving it in the light of its reliance on the
disputed Notice purportedly issued by Koma, which formed the basis of
the claim that the Local Labour Forum had reached consensus. To the
extent that I have not pronounced on the validity of that document,
and further to the extent that my conclusions were reached based
mainly on points of law rather than facts, I am not satisfied
that
this should be the only basis of making a costs order. Be that as it
may and having had regard to the circumstances of this
case and the
nature of the opposition to the review application, I am of the view
that the requirements of law and fairness dictate
that SAMWU should
be burdened with the costs of this application.
Order:
[34]
Accordingly, the following order is made;
1.
The decision by the First Respondent to conclude on behalf of the
Applicant, the settlement
agreement dated 5 December 2012 is reviewed
and set aside.
2.
The decision by the First Respondent to issue placement letters to
the Third to further Respondents
pursuant to the settlement agreement
dated 5 December 2012 is reviewed and set aside.
3.
The settlement agreement dated 5 December 2012 is declared to be
unlawful, null and void.
4.
The placement letters issued by the First Respondent are declared
unlawful, null and void
5.
The Second Respondent is ordered to pay the costs of this
application.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. H.W. Sibuyi
Instructed
by:
Phungo Incorporated
For
the Second, and Third to further Respondents:
Adv. F, Baloyi
Instructed
by:
Maenetja Attorneys
[1]
Basic values and principles
governing public administration
195. (1) Public
administration must be governed by the democratic values and
principles enshrined in the Constitution,
including the following
principles:
(a) A
high standard of professional ethics must be promoted and
maintained.
(b)
Efficient, economic and effective use of resources must be promoted.
(c)
Public administration must be development-oriented.
(d)
Services must be provided impartially, fairly, equitably and without
bias.
(e)
People’s needs must be responded to, and the public must be
encouraged
to participate in policy-making.
(f)
Public administration must be accountable.
(g)
Transparency must be fostered by providing the public with timely,
accessible
and accurate information.
(h)
Good human-resource management and career-development practices, to
maximise human potential, must be cultivated.
(i)
Public administration must be broadly representative of the South
African people, with employment and personnel management practices
based on ability, objectivity, fairness, and the need to redress
the
imbalances of the past to achieve broad representation.
(2) The above principles apply to—
(a)
administration in every sphere of government;
(b)
organs of state; and
(c)
public enterprises.
(3) National legislation must ensure
the promotion of the values and principles listed in subsection (1).
(4) The appointment in public
administration of a number of persons on policy considerations is
precluded, but national legislation
must regulate these appointments
in the public service.
(5) Legislation regulating public
administration may differentiate between different sectors,
administrations or institutions.
(6) The nature and functions of
different sectors, administrations or institutions of public
administration are relevant factors
to be taken into account in
legislation regulating public administration.
[2]
Act 32 of
2000, as amended
[3]
Annexure
‘SM2’ to the Answering Affidavit
[4]
[2014] 12 BLLR 1170
(LAC) at para 29
[5]
2004 (6) SA 222
(SCA) at para 26, where it was held that;
‘…
. But
the question that arises is what consequences follow from the
conclusion that the Administrator acted unlawfully. Is
the
permission that was granted by the Administrator simply to be
disregarded as if it had never existed? In other words, was
the Cape
Metropolitan Council entitled to disregard the Administrator's
approval and all its consequences merely because it believed
that
they were invalid provided that its belief was correct? In our view,
it was not. Until the Administrator's approval (and
thus also the
consequences of the approval) is set aside by a court in proceedings
for judicial review it exists in fact and
it has legal consequences
that cannot simply be overlooked. The proper functioning of a modern
State would be considerably compromised
if all administrative acts
could be given effect to or ignored depending upon the view the
subject takes of the validity
of the act in question. No doubt it is
for this reason that our law has always recognised that even an
unlawful administrative
act is capable of producing legally valid
consequences for so long as the unlawful act is not set aside.’
[6]
[2009] JOL 23108 (O)
[7]
At para 6
[8]
“
[74]
In addition to the above, there is clearly a dispute between the
parties as to the application
of the policy provisions of the first
respondent’s council in this case. It was undisputed that the
powers of Koma were
always subject to the policy regulations by the
first respondent’s council and to this effect both parties
relied on the
same delegation of powers document as approved by the
first respondent’s council in support of their respective
cases.
I have considered this document and cannot find any provision
specifically empowering Koma as municipal manager to make a
placement
of all the individual applicants,
en
masse
,
to new and higher post levels with added remuneration as a result.
The applicants have submitted that the delegated power provisions
in
this document in terms of which the municipal manager had the power
to (1) determine the remuneration, benefits or other conditions
of
service of employees appointed on a contract basis; (2) sign any
contract or documents on behalf of the council; (3) second
personnel
from one post to another; and (4) confirm staff appointments, would
empower Koma to have concluded the agreement
in
casu
.
The first respondent argued that none of these listed delegated
powers referred to by the applicants found application in this
case
and that an approval by the first respondent’s council was
always required for such an agreement to be concluded,
which
approval never happened. In
Manana
v King Sabata Dalindyebo Municipality,
the
Court said (referring to the Systems Act):
‘
In my view s 55(1) is no more
than a statutory means of conferring such power upon municipal
managers to attend to the affairs
of the municipality on behalf of
the municipal council. There is no basis for construing the section
as simultaneously divesting
the municipal council of any of its
executive powers. Indeed, as I have already pointed out, the
Constitution vests all executive
authority - which includes the
authority to appoint staff - in the municipal council and
legislation is not capable of lawfully
divesting it of that power.
To the extent that there might be any ambiguity in the statute in
that respect it must be construed
to avoid that result.’
Again,
I do not have to finally decide this issue as to whether council
approval was still required or there was proper complete
delegation
to Koma, which was actually not fully dealt with in evidence on the
papers. Suffice it to say, if the first respondent’s
contentions are true and correct, it would have a proper case to
challenge the conclusion of the agreement by Koma when asking
the
Court to set it aside.”
[9]
(2011) 32
ILJ
581
(SCA)
[10]
Supra