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[2018] ZALCJHB 246
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Madikizela v City of Ekurhuleni Metropolitan Municipality and Others (J2314/18) [2018] ZALCJHB 246 (13 July 2018)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase no: J2314/18
In
the matter between:
LUSANDA MADIKIZELA
Applicant
and
CITY
OF EKURHULENI
METROPOLITAN
MUNICIPALITY
First
Respondent
DR IMOGENG MASHAKAZI
N.O.
Second
Respondent
BONGANI KHOZA
N.O
Third
Respondent
Heard
:
10 July 2017
Delivered
:
13 July 2017
Summary:
(urgent interdict to stay disciplinary enquiry –urgency
established – pursuit of internal remedy
not dilatory –
prima facie right to set aside enquiry for alleged non-compliance
with regulations not established –
prima facie right, though
open to doubt to contractual relief established – better
alternative remedy in terms of an urgent
application for final order
of specific performance exists – unnecessary to link interim
contractual relief to outcome of
review proceedings)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an urgent application brought by the applicant, a senior
manager employed in terms of section 56 of the Local Government:
Municipal Systems Act, 32 of 2000 (‘the MSA’) to halt
disciplinary proceedings currently underway against her, pending
the
outcome of a review application filed on 27 June 2018 under case
number JR 1275/18.
[2]
The review application is multipronged and seeks the following
relief:
2.1
setting aside two resolutions of the City of Ekurhuleni Metropolitan
Municipality on 22 February
and 4 April 2018, which respectively
authorised an investigation into her alleged misconduct and the
institution of disciplinary
proceedings against her;.
2.2
declaring the disciplinary enquiry instituted against her to be
unlawful, and
2.3
declaring her suspension on 5 March 2018 to be unlawful.
Urgency
[3]
The urgent application for interim relief was launched on 29 June
2018 and set down for hearing on 10 July 2018. The reason
the
application was not brought earlier is that, the applicant first
raised her objections about the invalidity of the enquiry
before the
chairperson of the enquiry. It is common cause that the enquiry took
place on 15 May and 24 May 2018 and she raised
voluminous objections
in limine
at the enquiry proceedings, which the chairperson
considered and dismissed, reserving his reasons, on 25 June 2018. The
applicant
then sought a postponement in order to raise her
in
limine
objections in review proceedings, but the postponement was
refused and she then launched the urgent application.
[4]
The municipality contends that, she ought to have launched the urgent
application when she became aware of the basis on which
she claimed
the disciplinary proceedings instituted against her were unlawful,
since those were issues which the chairperson did
not have the power
to determine himself. While it is true that, strictly speaking, the
chairperson did not have the legal authority
to determine his
jurisdiction, I accept that he may have taken the view that it might
be improper of him to proceed with the enquiry
in the circumstances
and request the municipality to relieve him of his appointment. It
obviously also gave the municipality and
opportunity to consider the
merits of her objections without the parties having to go to court.
Although, she might have brought
the urgent application before the
enquiry even commenced, and arguably might be criticised for not
raising any preliminary objections
before the enquiry commenced as
she was advised to do in the notice of the enquiry, I do not think
she can be faulted for attempting
to have the issue addressed at the
commencement of the enquiry itself.
[5]
Accordingly, I am satisfied that once it became clear that her
objections had been rejected and the enquiry would proceed she
acted
with sufficient alacrity and also gave the municipality
enough opportunity to file answering papers before the
matter was
heard.
Existence
of a
prima facie
right
[6]
The applicant contends that the disciplinary proceedings against her
were instituted in breach of various provisions of the
Local
Government: Disciplinary Regulations for Senior Managers, 2010 (‘the
regulations’) and in breach of her contractual
right to an
enquiry by an arbitrator.
[7]
The applicant identified six alleged breaches of the regulations
which she alleged rendered her disciplinary enquiry unlawful,
namely:
7.1 A
request on 21 December 2017 from the Chief Specialist: Contract
Manager/Legal in the office
of the City Manager requesting an
internal audit to be conducted on a contract in terms of which a
contractor was appointed to
build a taxi rank at a location known as
Bluegumview amounted to an allegation of misconduct against her which
had to be tabled
by the mayor or the municipal manager before a
council meeting no later than seven days after the allegation was
received in terms
of regulations 5 (1) and (2). There is in my view,
no plausible basis for interpreting the request for an internal audit
as being
equivalent to an allegation of misconduct against the
applicant even on a
prima facie
basis. Accordingly, the fact
that the allegation was only tabled at a meeting of the Council in
January did not entail any breach
of the seven day provision.
7.2 The
applicant further claims that the council breached the regulation
5(3)(a) which states that:
If
the municipal council is satisfied that-
(a)
there is a reasonable cause to believe that an act of misconduct has
been committed by the senior manager, the municipal
council must
within seven [7] days point an independent investigator to
investigate the allegations of misconduct; …
The applicant claims that because the
resolution of the Council of 26 February 2018 decided that the city
manager should appoint
‘an independent investigator’ that
this was a breach of the regulation because the council itself had to
make such
an appointment and could not delegate that function to the
city manager. Secondly, she maintains that because the person, an
attorney,
who was appointed had previously represented the council in
a dispute with a contractor involving the same contract, in relation
to which she was alleged to have committed misconduct. The various
charges against her revolve principally around her alleged
authorisation of a payment of approximately R 540,000 to the
contractor in circumstances where she knew or ought to have known
that the contractor had not completed the work for which it was being
paid. There may be some merit in the claim that the Council
could not
delegate the appointment of the investigator to the city manager, not
least because the council does not deny this allegation.
I am more
doubtful that the investigator’s independence is impugned
merely because he had previously represented the council
in respect
of the same contract. That would not necessarily predispose him to
find fault with the applicant. In fact his knowledge
of the contract
might well have made him an ideal choice to conduct the
investigation, which after all could not make any binding
pronouncement on the applicant’s guilt as such. In any event,
as the investigation is merely a preliminary stage to launching
disciplinary enquiries, unless there is manifest bad faith, or
capriciousness on the part of the Council in initiating such an
investigation, it is difficult to see why such deviations from the
procedure would necessarily invalidate the entire disciplinary
proceedings, if it does not involve a material deviation from the
principles governing the disciplinary code set out in regulation
5(3). In this regard see
Steenkamp
& Others v Edcon Ltd
.
[1]
The dangers of a rigid literal approach to interpreting regulations
must also be borne in mind, as the SCA cautioned in
Weenen
Transitional Local Council v Van Dyk
[2]
:
“
[13]
It seems to me that the correct approach to the objection that the
appellant had failed to comply with the requirements of
s 166 of the
ordinance is to follow a common-sense approach by asking the question
whether the steps taken by the local authority
were effective to
bring about the exigibility of the claim measured against the
intention of the legislature as ascertained from
the language, scope
and purpose of the enactment as a whole and the statutory requirement
in particular (see Nkisimane and
Others v Santam Insurance Co Ltd1978
(2) SA 430 (A) at 434A - B). Legalistic debates as to whether the
enactment is peremptory
(imperative, absolute, mandatory, a
categorical imperative) or merely directory; whether 'shall' should
be read as 'may'; whether
strict as opposed to substantial compliance
is required; whether delegated legislation dealing with formal
requirements are of
legislative or administrative nature, etc may be
interesting, but seldom essential to the outcome of a real case
before the courts.
They tell us what the outcome of the court's
interpretation of the particular enactment is; they cannot tell us
how to interpret.
These debates have a posteriori, not a priori
significance. The approach described above, identified as '. . . a
trend in interpretation
away from the strict legalistic to the
substantive' by Van Dijkhorst J in Ex parte Mothuloe (Law Society,
Transvaal, Intervening)
1996 (4) SA 1131
(T) at 1138D - E, seems to
be the correct one and does away with debates of secondary importance
only.”
[3]
7.3 The
Applicant also claims that the alleged failure to validly appoint the
investigator meant that
anything done by the investigator or by the
council pursuant to the investigation report tabled by the
investigator were also invalid.
Accordingly, she argues that the
disciplinary enquiry was unlawful because the report tabled before
the council on the basis of
which it took the decision to institute
disciplinary proceedings was not produced by an independent
investigator appointed by the
council itself and therefore breached
the requirements of regulations 5(5) and (6). This cascading effect
argued for by the applicant
in essence is that, on a proper
construction of the regulations, they should be read to mean that
each successive step in the institution
of disciplinary proceedings
rests on the legal validity of the previous step and not merely on
the fact that the previous step
had been taken. If, one takes the
view, as I do, that the appointment of the investigator substantially
complied with regulations
5(3) and (4), then the subsequent steps
taken by the Council to have the report tabled and considered before
deciding to institute
disciplinary proceedings are not rendered
invalid.
7.4
The applicant further contends
that the resolutions of the Council appointing the investigator and
authorising disciplinary proceedings
were not voted upon as required
by section 160 (3)(c) of the Constitution of the Republic of South
Africa and
section 30
(3) of the
Local Government: Municipal
Structures Act 117 of 1998
. The applicant further argues that she
asked the council for proof that the resolution was voted upon, which
was not forthcoming.
In the answering affidavit, the council attaches
the resolutions both of which reflect that the resolutions were
unanimously adopted
and asserts that they were voted upon. In the
context of application proceedings for temporary relief on the test
in
Webster v Mitchell
[4]
the councils answer on this question must be accepted in my view.
7.5
Lastly, the applicant contends that, there is another distinct
contractual basis that makes the
current disciplinary proceedings
unlawful. She contends that she signed a contract of employment which
included the following provision:
Any
dispute arising out of misconduct or incapacity or operational
requirements or application or interpretation of this agreement,
while this agreement is in force , will be dealt with as follows : -
15.1
….
15.2
should the employee commit an act of misconduct of a serious nature
that warrants a disciplinary hearing, the Parties agree
to use the
PRE-DISMISSAL ARBITRATION in terms of the Labour Relations Act 66 of
1996 as amended.
(original capitalisation)
The difficulty the applicant faces is
that, she only has an unsigned version of a contract containing this
provision. Notwithstanding
this, she did allege in her founding
affidavit and provided further evidence thereof in reply in the form
of an alleged email from
an erstwhile Human Resources Manager
apparently confirming that her contract was sent to the City Manager,
but that she still had
to sign an addendum relating to Municipal
Finance Management Act training before the city manager could sign
the contract. A copy
of the addendum signed only by the applicant is
attached to the applicant’s founding affidavit. She also gives
a plausible
account of the circumstances under which she claimed she
signed the contract at a police station, but did not provide a
confirmatory
affidavit of the council official who supposedly
accompanied her to the police station. The council submits that the
only contract
that exists between the parties is a letter of
appointment, which the applicant denies can be considered a contract
of employment
under s 57(1)(a) of the MSA because it does not set out
her duties which is a pre-requisite of such contracts under s 57(3)
of
that Act.
[5]
She further points out that the letter of appointment itself
describes her Conditions of Service “As per the employment
contract”. She further submits that it is improbable she would
have been employed since 1 February without a contract. On
the
evidence, it would appear that it is reasonably probable that the
applicant did sign a contract containing the arbitration
provision in
question. A pre-dismissal arbitration provision in a contract of
employment is now permissible in terms of s 188A
(4)(b) of the LRA,
which states that:
Despite
any other provision in this Act, an employee earning more than the
amount determined by the Minister in terms of section
6(3) of the
Basic Conditions of Employment Act at the time, may agree in a
contract of employment to the holding of an inquiry
in terms of this
section.
There is no dispute the applicant
earns above the threshold. On the face of the conflicting evidence, I
am satisfied that she has
a
prima facie
right to a
pre-dismissal arbitration hearing in terms of her contract of
employment, though her reliance on such an entitlement
is irrelevant
to a review based on non-compliance with the regulations . It is also
unclear why that right should be asserted indirectly
by way of a
review of the chairperson’s ruling on that issue, when the
applicant is effectively asserting a self standing
right to specific
performance of her contract of her employment which is enforceable
irrespective of the chairperson’s ruling
on that issue.
[8]
In conclusion, I am not satisfied that the applicant has established
a prima facie right, though open to doubt, to set aside
the enquiry
for want of compliance with the regulations. She does have a prima
facie right to a pre-dismissal hearing. The question
remains whether
it is appropriate to address this on an interim basis.
Existence
of alternative remedies
[9]
As I have decided that the applicant has not established a prima
facie right to review and set aside the disciplinary proceedings
on
account of non-compliance with the regulations, it is not necessary
to consider the existence of a suitable alternative remedy.
[10]
What is unclear is how the applicant can justify a claim for interim
relief in respect of her contractual remedy which she
can pursue
quite independently of any review proceedings and for which she could
seek a final order for specific performance. In
my view, such an
application for final relief is more than an adequate alternative
remedy to this application for interim relief
under the rubric of
pursuing a review of a chairperson’s ruling on an issue he
could not even decide in the first place.
Prejudice
and balance of convenience
[11]
The main prejudice the applicant complains of is having to be subject
to a disciplinary enquiry which is either unlawful in
terms of the
regulations or it is an unlawful breach of her contract of
employment. If she had simply pursued a final claim for
specific
performance on an urgent basis there is no reason she needed to
suffer such prejudice if her contractual claim is sound.
It is
inappropriate in my view to weigh up the applicant’s prejudice
if she is not granted interim relief staying the proceedings,
when it
is quite unnecessary for her to link her contractual relief to the
pending review proceedings. Further, granting interim
relief in
relation to the applicant’s contractual claim would have a
somewhat absurd result, because it would pointlessly
stay the
disciplinary enquiry when the contractual right she seeks to enforce
is to replace the current enquiry with a pre-dismissal
enquiry. I
cannot see how it could be in either party’s interest to delay
the final determination of that relief, by linking
it to the outcome
of the review proceedings.
[12]
In the circumstances, I am satisfied that this is not a case in which
interim relief should be granted in relation to the applicant’s
prima facie right to a pre-dismissal hearing.
Order
[1]
The application is dealt with as one of urgency and non-compliance
with the rules of the
Labour Court relating to service and time
periods is condoned.
[2]
The application is dismissed.
[3]
No order is made as to costs.
_______________________
R
Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
V
G Mkwibiso of VGM Attorneys
RESPONDENT:
G
I Hulley, SC assisted by M A
Tshivhase
instructed by Mogaswa Inc
Attorneys
1]
2016(3) SA 251 (CC) , paras [183] – [184].
[2]
2002 (4) SA 653 (SCA)
[3]
At 659.
[4]
1948 (1) SA 1186
(W.L.D.) at 1189
[5]
The pertinent provisions of s 57 of the MSA state:
57
Employment contracts for municipal managers and managers directly
accountable to municipal managers
(1)
A person to be appointed as the municipal manager of a municipality,
and a person to be appointed as a manager directly accountable
to
the municipal manager, may be appointed to that position only-
(a)
in terms of a written employment contract with the municipality
complying with the provisions of this section;
and
(b)
subject to a separate performance agreement concluded annually as
provided for in subsection (2).
(2)
The performance agreement referred to in subsection (1) (b) must-
(a)
(i) be concluded within 60 days after a person has been
appointed as the municipal manager or as a
manager directly
accountable to the municipal manager, failing which the appointment
lapses: Provided that, upon good cause shown
by such person to the
satisfaction of the municipality, the appointment shall not lapse;
and
(ii)
be concluded annually, thereafter, within one month after the
beginning of each financial year of the municipality;
(b)
in the case of the municipal manager, be entered into with the
municipality as represented by the mayor or executive
mayor, as the
case may be; and
(c)
in the case of a manager directly accountable to the municipal
manager, be entered into with the municipal manager.
(3)
The employment contract referred to in subsection (1) (a) must-
(a)
include details of duties, remuneration, benefits and other terms
and conditions of employment 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; and
(b)
be signed by both parties before the commencement of service.