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[2018] ZALCJHB 383
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Mpele v Municipality Council of the Lesedi Local Municipality and Others (J 2497-18) [2018] ZALCJHB 383; [2018] 12 BLLR 1192 (LC); (2019) 40 ILJ 572 (LC) (13 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: J 2497-18
Not Reportable
In
the matter between:
PAUL
MPELE
Applicant
and
THE
MUNICIPALITY COUNCIL OF THE LESEDI
LOCAL
MUNICIPALITY
1
st
Respondent
THE
LESEDI LOCAL MUNICIPALITY
2
nd
Respondent
THE
SPEAKER OF THE LESEDI
LOCAL
MUNICIPALITY
3
rd
Respondent
THE
EXECUTIVE MAYOR OF THE
LESEDI
MUNICIPALITY
4
th
Respondent
THE
MEC OF CO-OPERATIVE GOVERNANCE,
TRADITIONAL
AFFAIRS AND HUMAN SETTLEMENTS
5
th
Respondent
GUGULETHU
THIMANE
6
TH
Respondent
Heard:
20 July 2018
Delivered:
13 August 2018
Summary:
Urgent application to declare termination of employment unlawful and
order reinstatement
Nature
of dispute – termination of employment contract of employee by
way of resolution of municipal council – constitutes
a
dismissal as contemplated by the LRA – dispute should be dealt
with by bargaining council under normal dispute resolution
processes
under Chapter VIII of the LRA
No
extraordinary circumstances shown to justify departure from normal
dispute resolution processes – alternative remedy available.
JUDGMENT
WHITCHER
J
Introduction
[1]
The applicant was appointed on 13 October 2017 as the Municipal
Manager of the second respondent. The appointment was on a five
year
fixed term contract. Seven months after the appointment, the MEC [the
fifth respondent] took issue with the constitution of
the selection
panel which recommended the applicant’s appointment having
consisted of six members. He viewed this to be contrary
to Regulation
12(3) of the Local Government: Regulations on Appointment and
Conditions of Employment of Senior Managers.
[2]
Regulation 12(3) provides that:
The
selection panel for the appointment of a municipal manager must
consist of at least three and
not
more than five members,
constituted as follows:
(a)
the
mayor, who will be the chairperson, or his or her delegate;
(b)
a
councillor designated by the municipal council;
(c)
at
least one other person, who is not a councillor or a staff member of
the municipality; and who has expertise or experience in
the area of
the advertised post.
[1]
[3]
Relying on section 54A(8) of the Municipal Systems Act 32 of 2000, as
amended (“the Systems Act”), the MEC directed
the first
respondent to rescind its decision of 14 July 2017 concerning the
constitution of the selection panel; and its decision
of 12 October
2017 concerning the appointment of the applicant as Municipal
Manager.
[4]
Section 54A(8) provides as follows:
(8)
If a person is appointed as municipal manager in contravention of
this section, the MEC for local government must within 14
days of
receiving the information provided in subsection (7), take
appropriate steps to enforce compliance by the municipal council
with
this section, which may include an application to a court for a
declaratory order on the validity of the appointment, or any
other
legal action against the municipal council.
[5]
On 29 June 2018 the first respondent, at a special Council meeting,
rescinded its (aforementioned) decisions; ultimately rescinding
the
applicant’s appointment as Municipal Manager.
[6]
The first respondent further resolved to reconvene “to
constitute” a new selection panel for the appointment of
a
Municipal Manager.
[7]
On 28 June 2018, prior to the special Council meeting, the
applicant’s attorneys wrote to the Executive Mayor and Council.
In the letter, they submitted that:
“
First,
it would offend the principles of fairness to deal with an issue
adverse to the concerns and interests of the MM without
having
formally given the MM adequate notice that this is to be done and an
opportunity to be heard;
…
Thirdly,
….section 12(3) … requires a proper consideration by a
court of law before it can be found that that portion
which provides
for “not more than five members” is peremptory or not. In
our respectful submission it is quite clear
that there must be at
least three members (this is compulsory) but the maximum number of
five is directory having regard to the
identity of the composition of
the selection panel.
It
is common cause that there was compliance with section 12(3) (a), (b)
and (c). The only issue is whether the additional member
had a say or
not. Even if our view on the construction of the section is incorrect
in law, it may be that the consequence is that
the sixth member’s
vote is not taken into account. This too would leave the positon that
the MM was lawfully appointed.
…
.
In
the least, our client the MM would like to have a proper opportunity
to make representations to the Mayor Committee before any
decision is
taken so that the Mayoral Committee can properly apply its mind and
adopt a resolution or decision that is rational
and reasonable. To do
so the MM requires a reasonable opportunity to prepare and to appear
at a properly constituted Mayor Committee
meeting to deal with the
matter. “
[8]
There was no response to this letter.
[9]
On 29 June 2018, the applicant’s attorneys advised the MEC that
the first respondent was not entitled to unilaterally
rescind the
applicant’s appointment. It required a Court Order.
[10]
On 2 July 2018, the applicant was promised a meeting during the
course of the week with the MEC. The meeting did not come to
pass.
[11]
On 4 July 2018, the MEC directed the first respondent to pass a
resolution appointing the applicant to his previous position
of CFO
with immediate effect.
The
application before me
[12]
On 11 July 2018, the applicant filed an urgent application for an
order in the following terms:
“
Prayer
2 Declaring the first respondent’s decision of 28 June 2018 to
rescind the appointment of the applicant as Municipal
Manager,
ultimately terminating his employment as Municipal Manager, to be
unlawful.
Prayer
4 Reinstating the applicant into the position of Municipal Manager in
the same terms and conditions enjoyed by him prior
to the first
respondent’s decision to terminate his employment as Municipal
Manager.”
[13]
In Prayer 3 the applicant had sought an order declaring the MEC’s
decision of 27 June 2018 to be unlawful, but abandoned
same on the
basis that his application is directed against the first respondent’s
actions, i.e. the action of his employer
terminating his contract of
employment.
[14]
The first and second respondents do not oppose the application.
[15]
In Prayer 5 of the Notice of Motion, the applicant had prayed for an
order directing the first, second and/or fifth respondent,
solely or
jointly, to bring a review application within 14 days of the court’s
order aforesaid, concerning the legality and/or
validity of the first
respondent’s decision of 14 July 2017 appointing the applicant
as Municipal Manager.
[16]
Clearly, in response to this prayer, the MEC filed, on 20 July
2018,
[2]
a
counter-application together with an opposing affidavit to the main
application.
[17]
In the counter-application, the MEC seeks the following relief:
staying the [main] application; the setting aside of the panel
set up
by the first respondent for the purpose of appointing its Municipal
Manager; setting aside all decisions and actions taken
by that panel,
and in particular its recommendation that the applicant be appointed
as Municipal Manager; and directing the first
respondent to set up a
panel that complies with the applicable statutory provisions, in
particular Regulation 12 (3).
The
parties’ submissions
[18]
The applicant submits that he was unlawfully dismissed by the
first/second respondent. They acted unilaterally and failed to
apply
formally for a court to review the validity of his appointment. Their
failure to do so further contravened his right to be
heard because in
the aforementioned court process, he would have been entitled to
proper notice and a hearing on whether his appointment
should be set
aside.
[19]
In support of his contention, the applicant referred to the following
extracts from
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[3]
and
MEC
for Health Eastern Cape and Another v Kirland Investments (Pty)
Ltd.
[4]
[20]
Oudekraal
:
“
[26]
…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.”
[21]
In
Kirland,
Cameron
J stated the following:
“
[64]
… Even where the decision is defective – as the evidence
here suggests – government should generally not
be exempt from
the forms and processes of review. It should be held to the
pain and duty of proper process. It must
apply formally for a
court to set aside the defective decision, so that the court can
properly consider its effects on those subject
to it.
[65]
The reasons spring from deep within the Constitution’s scrutiny
of power. The Constitution regulates all public power.
Perhaps the
most important power it controls is the power the state exercises
over its subjects. When government errs by issuing
a defective
decision, the subject affected by it is entitled to proper notice,
and to be afforded a proper hearing, on whether
the decision should
be set aside. Government should not be allowed to take
shortcuts. Generally, this means that government
must apply formally
to set aside the decision. Once the subject has relied on a
decision, government cannot, barring specific
statutory authority,
simply ignore what it has done. The decision, despite being
defective, may have consequences that make
it undesirable or even
impossible to set it aside. That demands a proper process, in which
all factors for and against are properly
weighed.”
[22]
The MEC submitted that, in light of its counter-application, the only
issue that remains to be decided in the main application
is whether
it is necessary to consider whether the applicant should be granted
the relief he seeks in prayer 2 and 4 above.
[23]
This is because, the MEC submits, the only relief the applicant seeks
in these two prayers is that he be granted declaratory
orders –
not consequential relief - and that the issuance of a declaratory
order does not in itself lead to the grant of
consequential relief.
[24]
In any event, the MEC submitted, the applicant is not entitled to an
order that he be reinstated to the positon of Municipal
Manager
because the validity of his appointment is subject to serious if not
conclusive doubt in light of Regulation 12(3).
[5]
[25]
The MEC contends that, in terms of section 172(1) of the
Constitution, it would not be just and equitable to reinstate a
person
into the most senior position in a local municipality if his
appointment appears “overwhelmingly to be unlawful”.
[26]
Moreover, the applicant would not suffer prejudice in the interim if
he were not reinstated to the position of Municipal Manager
because
he could resume being the Chief Financial Officer, the position he
occupied prior to his appointment as Municipal Manager.
[27]
During the course of argument, counsel for the MEC raised a further
submission.
[28]
I was referred to the Constitutional Court judgment in
Department
of Transport and Others v Tasima (Pty) Limited.
[6]
On
the strength of this judgment, counsel for the MEC contended that
even if the first respondent ought to have approached the court
to
make an application to set aside the appointment of the applicant,
the fact that the MEC does so in a counterapplication means
that the
counter-application is as much before this court as the main
application, and it is clear in the counter-application that
the
appointment of the applicant was invalid.
[29]
Counsel, unfortunately, did not refer the court to specific
paragraphs in the
Tasima
judgment. I read the full judgment,
but, as will become apparent, I need not address the issues raised in
this judgment.
[30]
Counsel for the applicant moreover submitted that
Tasima
has no application to the main case before me because the applicant
is seeking to set aside the decision of his employer who unilaterally
terminated his services. The applicant is not challenging the MEC’s
powers and his administrative decision. The applicant
is challenging
his employer’s decision which decision falls outside the realm
of administrative decisions and law. The court
is thus being called
upon to deal with the labour law rights of an employee. By failing to
follow lawful process to terminate his
employment contract, his
employer denied him the right to be heard before a decision on the
validity of his contract was determined.
The applicant has a clear
right not to be unlawfully dismissed and a right to expect his
employer to comply with the law before
making a decision as to the
termination of his employment. The court is not doing anything
magical by reinstating the applicant
pending the determination of the
MEC’s application.
The
merits of the interpretation of Regulation 12(3) are thus an issue
for another day.
Analysis
[31]
Since my ruling today extinguishes the main application in this
forum, the counter-application in its present format falls
away.
Should the MEC nevertheless opt to have the original appointment of
the applicant reviewed and set aside, it is free to approach
the
court afresh in the normal way. It would do so under whatever
provisions of the LRA clothe the Labour Court with jurisdiction
to
hear such a matter
and
within circumstances which would make it appropriate for this court
to hear such an application.
[32]
The action at the heart of the matter before me is an employer’s
termination of an employee’s contract of employment
with or
without notice. This is the definition of dismissal in section 186
(1) of the Labour Relations Act, 1995 (LRA). Although
the employer’s
initiative to bring the employment relationship to an end was an
unusual [and I would venture to say an unfair
one], there is to my
mind no escaping the underlying nature of this dispute however it has
been pleaded. The employer gave into
the MEC’s demand that the
applicant’s contract be terminated and he was dismissed.
[33]
Part of the challenge to the legality of this dismissal seems to rest
on an understanding that the employer was only permitted
to terminate
the employee’s services after a successful application to court
by the MEC in terms of
section
54A(8) of the Systems Act. But this statute only requires the
MEC, upon receipt of information that an appointment
contravened
section 54, ‘to take appropriate steps to
enforce
compliance
by the municipal council with this section, which
may
include
an
application to a court for a declaratory order on the validity of the
appointment, or any other legal action against the municipal
council.’ (emphasis added)
[34]
As is apparent from a purposive reading of section 54A(8), this
provision is meant to regulate the enforcement of an MEC’s
views that an appointment was irregular over the entity that must do
something about it; the actual employer. I do not read this
section
of the Systems Act to state that there is a statutory obligation on
an MEC to seek a declaratory order before a municipality
complies
with his view that an appointment was irregular by, for example,
terminating a contract. Nor is there an obligation on
a municipality
to only terminate an irregularly appointed employee’s contract
on receipt of such advice from a court. Section
54A(8) of the MSA
regulates what must happen when compliance needs to be enforced.
Seeking a declarator is then one of the steps
the fifth respondent
may
have taken to get his way. If a court had indeed been approached and
a material irregularity established, then the applicant’s
contract would have been declared null and void. But this is not the
only way that compliance with section 54A may be obtained.
The
municipality may agree that the contract needs to be terminated and
it then assumes the duty to do so in compliance with another
statute,
the LRA.
[35]
Reference to a declarator and other legal action in section 54A(8)
seems to envisage circumstances in which there is resistance
from a
municipality to the MEC’s views that an appointment was
irregular by being in contravention of the rest of section
54. As it
turns out, the MECs instruction was obeyed without the need that the
municipality’s hand be forced at all. No mandatory
adjudication
is thus prescribed, nor would it make any sense that it be
prescribed, where a MECs instruction to a municipality
to correct an
irregular appointment is accepted by the latter.
[36]
To the extent that this court is asked to find that the dismissal
breached the principle of legality for want of compliance
with
provisions in the Systems Act that first require some legal action by
the MEC, I do not read the relevant provision this way.
I therefore
dismiss this point.
[37]
As mentioned above, where a municipality accepts the MEC’s view
that an appointment was irregular and the contract must
be terminated
as a result, it must comply with its own legal obligations to its
employee. These are set out in the
Labour Relations Act of 1995
. This
brings us to the second challenge to the termination of the
employee’s contract. This is that he was denied ‘
a
proper opportunity to make representations to the Mayor Committee
before any decision is taken so that the Mayoral Committee can
properly apply its mind and adopt a resolution or decision that is
rational and reasonable
.’
To my mind, the applicant has very clearly established that he was
denied an opportunity to be heard in the forum that ultimately
acted
upon the MEC’s instruction; that is, the mayoral council
meeting of 4 July 2018.
[38]
But on this score, the applicant essentially contends that his
termination was for no good reason and that it was procedurally
unfair in that he was given no hearing beforehand. He, moreover,
seeks reinstatement as relief. This is all the nomenclature of
dismissal law. The question that arises is whether a complaint about
a faulty reason for dismissal and the denial of
audi
altaram partem
belongs in the Labour Court as a court of first instance?
[39]
As I have already found, as a matter of law, there was no breach of s
54A(8) of the Systems Act. The remaining question is
whether the
applicant’s contentions about the substance (the additional
person on the selection panel did not invalidate
his appointment) and
procedure (he was not heard on the matter) of his dismissal ought to
be decided by the Labour Court.
[40]
The Labour Appeal Court in
Hendricks
[7]
found that public sector employees aggrieved by dismissal or unfair
labour practices ‘should ordinarily pursue the remedies
available in sections 191 and 193 of the LRA, as mandated and
circumscribed by s 23 of the Constitution …’ Surveying
the broad ambit of case law from
Chirwa
[8]
through to
Gcaba
[9]
,
the LAC found that challenges to the legality of decisions taken by
the state in its capacity as employer could be reviewed on
any
grounds permissible in law,
if
no other remedy is available
.
This is why, for instance, reviews of so-called ‘deemed
dismissals’ under section s17(3)(a)(i) and s17(3)(b) of the
Public Service Act are entertained by the Labour Court as there quite
simply is no other remedy available in labour law for terminations
that take place by operation of law.
[41]
Although dealing with applications brought in terms of section
158(1)(h), the views of Myburgh AJ, in
Magoda
v Director-General of Rural Development and Land Reform and
Another
[10]
are apposite:
“…
insofar
as the LRA provides a remedy to address the applicant’s
complaints … I do not consider a review in terms of
section
158(1)(h) to be permissible – otherwise a separate legal
framework would apply to public and private sector employees.
As held
by the LAC in
De
Bruyn
,
the LRA may oust the section 158(1)(h) review jurisdiction of this
court, where, for example, the dispute involves the interpretation
or
application of a collective agreement, which stands to be arbitrated
by the CCMA. The LAC went on to find that a section 158(1)(h)
review
was not permissible on what appears to be a wider basis: “[i]t
follows that the appellant is confined to its remedy
in terms of
section 24 of the LRA and it may not, instead, seek to review the
respondent's decision in the Labour Court in terms
of section
158(1)(h).” Along similar lines, the LAC indicated in
Hendricks
that section 158(1)(h) reviews should be confined to legitimate
challenges where there is no other remedy available under the LRA.
As
Murphy AJA went on to put it, “[i]f a cause of action meets the
definitional requirements of an unfair labour practice
or an unfair
dismissal, the dictates of constitutional and judicial policy mandate
that the dispute be processed by the system
established by the LRA
for [its] resolution”. This court has also held, on more than
one occasion, that where another remedy
exists under the LRA, a
section 158(1)(h) review is not permissible. …’
[42]
In
casu
,
the applicant was dismissed on the initiative of his employer. He
thus has a remedy under the LRA other than seeking relief from
the
Labour Court in motion proceedings. This is to take the well-trodden
path of many employees before him, no matter their rank,
who have had
their dismissals conciliated by the CCMA or Bargaining Council and,
if the dispute remains unresolved, arbitrated
on the evidence.
[43]
As the Labour Court in
Mohlomi
v Ventersdorp/Tlokwe Municipality and Others
[11]
recently pointed out:
‘…
the
LRA has a very unique scheme where it comes to resolving disputes
that arise in the scope of the employment relationship. This
includes
such disputes involving the state as employer. The LRA creates a
right to a fair dismissal and the right to a fair labour
practice,
and then provides for a prescribed dispute resolution process to give
effect to such rights. At the heart of this dispute
resolution
process lies the notion of fairness as between both employer and
employee. This notion of fairness is not compatible
with concepts
such as unlawfulness or illegality or invalidity. At a level of
policy, this Court should always strive to give primacy
to this
prescribed dispute resolution processes of the LRA and the notions
underlying it…’
[12]
(footnotes omitted)
[44]
The Court goes on:
‘
[40]
Therefore, and when this Court is confronted with an application
seeking to challenge decisions in the context of the employment
relationship in the public service, this Court is duty bound to
ascertain whether the decision taken is one that would normally
be
susceptible to challenge under the auspices of what is defined as a
dismissal or unfair labour practice in Chapter VIII of the
LRA,
irrespective of the fact that the review applicant may label it as a
legality challenge. Thus, the classification of the dispute
as one of
an infringement of a Constitutional principle of legality and a
challenge being launched on that basis, must be carefully
scrutinized, so as to ascertain if it is a dispute capable of
resolution under the proper prescribed processes under Chapter VIII
of the LRA in the forum properly and specifically designated to deal
with such a dispute. As said by Ngcobo J in
Chirwa
:
“…
It
could not have been the intention of the legislature to allow an
employee to raise what is essentially a labour dispute under
the LRA
as a constitutional issue under the provisions of s 157(2). To hold
otherwise would frustrate the primary objects of the
LRA and permit
an astute litigant to bypass the dispute-resolution provisions of the
LRA. This would inevitably give rise to forum
shopping simply because
it is convenient to do so or as the applicant alleges, convenient in
this case 'for practical considerations'.
What is in essence a labour
dispute as envisaged in the LRA should not be labelled a violation of
a constitutional right in the
Bill of Rights simply because the
issues raised could also support a conclusion that the conduct of the
employer amounts to a violation
of a right entrenched in the
Constitution.’
[45]
While it is trite that the jurisdiction of the Labour Court is
determined by the pleaded case and that this court has jurisdiction
to entertain an attack on the legality of an action of an employer,
this does not mean that it must do so. As stated in
Aucamp
v SA Revenue Service
[13]
:
“…
it
is the duty of the Labour Court to determine the true nature of the
issue in dispute between the parties before court, no matter
how an
applicant may choose to label or describe the dispute. The court is
not bound by the description of the dispute as may be
articulated by
an applicant. …’
[46]
Aside from the alleged violation of s 54A(8) of the Systems Act,
discussed above, I was pointed to no specific contractual
provisions
that the applicant alleges were breached and which he asks this court
to enforce. Everything about his challenge sits
foursquare within
ordinary dismissal law. The character of his challenge to his
employer’s actions is about its soundness
of reason and
fairness of procedure. The cause of action is a termination of
a contract without notice and the relief sought
is also proper to
dismissal disputes. I am thus of the view that this matter is truly a
dismissal matter.
[47]
Having found that this dispute is in truth a dismissal matter which,
as case law suggests, should ordinarily be processed as
set out in
section 191 of the LRA, the remaining question to ask is whether
exceptional circumstances exist nevertheless justifying
the court
exercising its discretion to hear it, especially as a matter of
urgency. Since no such circumstances were substantively
pleaded, none
are taken into account.
[48]
For the reasons set out above, I therefore dismiss the application.
[49] In the
premises I make the following order:
Order:
1.
The
application is dismissed.
2.
Each
party to pay their own costs.
B
Whitcher
Judge of the Labour Court
of South Africa
Appearances
:
For
the Applicant:
Adv N.A. Cassim SC with T. Govender
Instructed
by: Tshiqi
Zebediela Attorneys
For
the Fifth Respondent:
Adv V. Soni SC
Instructed
by: State
Attorney, Johannesburg
[1]
Emphasis added.
[2]
The day of the hearing of the applicant’s
application
[3]
2004 (6) SA 222
SCA
[4]
2014 (3) SA 481
[5]
As
mentioned earlier on, the MEC took issue with the fact that the
panel consisted of six members rather than five members, and
on this
basis contended the appointment was unlawful and directed the first
and second respondent to rescind the appointment
of the applicant.
The
MEC did not take issue with the applicant’s contention that
there
was compliance with section 12(3) (a), (b) and (c).
[6]
2017 (1) BCLR 1
(CC); 2017 (2) SA 622 (CC).
[7]
Hendriks
v Overstrand Municipality
[2014]
12 BLLR 1170
(LAC)
at
paras 21 and 32.
[8]
Chirwa v Transnet Ltd and Others
(2008) 29
ILJ 73 (CC) .
[9]
Gcaba v
Minister of Safety and Security and Others
(2010)
31 ILJ 296 (CC).
[10]
[2017] JOL 38772
(LC) at para 10.
[11]
[2018] 4 BLLR 355
(LC); (2018) 39
ILJ
1096 (LC).
[12]
At para 39.
[13]
(2014) 35 ILJ 1217 (LC)
at
para 18
.