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[2018] ZALCJHB 371
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Rudman v Maquassi Hills Local Municipality and Others (J 3495/18) [2018] ZALCJHB 371 (8 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 3495/18
In the matter between:
JANET
RUDMAN
Applicant
and
MAQUASSI HILLS LOCAL
MUNICIPALITY
First Respondent
MOTHUPI MOKGATLA
N.O
Second
Respondent
LENTIKILE JOHANNES
MOGOEMANG
Third Respondent
Heard: 2 November 2018
Delivered: 8 November 2018
JUDGMENT
TLHOTLHALEMAJE, J
Introduction and
Background:
[1] This application
represents round two of the on-going dispute between the parties. The
applicant (Ms Rudman) having initially
approached this court on an
urgent basis on 11 October 2018, obtained an order on
25 October 2018 (per Mabaso
AJ), in terms of which the
termination of her appointment as acting Municipal Manager was
declared unlawful and accordingly set
it aside. The first and second
respondents were further directed to abide by the Council’s
Resolution under number 10/18
dated 12 September 2018 in
terms of which Rudman was appointed.
[2] The ink had
hardly dried on the Court order of 25 October 2018 when an
application for leave to appeal was launched
and served on Rudman on
the very same day and some four hours after Mabaso AJ’s
judgment was delivered. Rudman approached
this Court in terms of the
provisions of section 18 of the Superior Courts Act
[1]
,
for leave to execute the judgment and order pending the application
for leave to appeal and/or any subsequent appeal proceedings.
The
respondents strenuously opposed the application to execute, stating
that no basis had been laid in accordance with the provisions
of
section 18(1) and (3) of the Superior Court’s Act for the
granting of the order sought by Rudman.
[3] The facts of
this matter are succinctly set out by Mabaso AJ in his judgment, and
will not be repeated save to state the following
common cause facts;
3.1 Rudman is
employed by the first respondent, Maquassi Hills Local Municipality
(Municipality) as its Divisional Head: Administration.
3.2 On
22 August 2018, following concerns raised by the Department
of Local Government and Human Settlements surrounding
serious
maladministration, financial mismanagement and poor governance at the
Municipality, which had seriously impacted on service
delivery
programmes, the Bakone Bophirima Provincial Executive Committee (PEC)
resolved to appoint the second respondent (Mokgatla),
as an
Administrator in accordance with the provisions of section 139(1) (b)
of the Constitution of the Republic.
[2]
The appointment was for a period of six months. The Municipality was
one of the five municipalities identified in the North West
Province,
where administrators and intervention teams were appointed. The
Resolution of the PEC was to be effective from 1 September 2018.
3.3 The Municipality
has been without an Executive Municipal Manager and other executive
officials (Section 56 Managers) since July/August 2018.
On
12 September 2018, and in the absence of the Municipal
Executive Mayor, the Speaker and other Councillors, the Council
of
the Municipality resolved to appoint Rudman as the Acting Municipal
Manager and three other officials as Acting Section 56 managers.
3.4 Rudman’s
acting appointment was to be for a period of three months until
12 December 2018. For reasons that
were to become
immediately obvious, the Executive Mayor, who was authorised to sign
off Rudman’s letter of appointment refused
to do so. The
appointment was however signed off by another Councillor as mandated
by the Council Resolution.
3.5 On
18 September 2018, Rudman received correspondence from the
Executive Mayor indicating that her appointment as acting
municipal
manager was invalid owing to the activation of the processes
contemplated by the provisions of section 139(1)(b) of the
Constitution of the Republic.
3.6 Mokgatla as the
appointed Administrator was introduced to the Municipality on
19 September 2018. On 26 September 2018,
Rudman
received a letter from Mokgatla advising her of the termination of
her acting appointment. On the same date, Mokgatla appointed
the
third respondent (Moegoemang), as the Acting Municipal Manager.
[4] Following the
urgent application, Mabaso AJ’s order, and the filing of the
application for leave to appeal, Rudman
on
26 October 2018
sought an undertaking from the
respondents that they would abide by the order of the Court pending
the final determination of the
appeal proceedings. The undertaking
was not forthcoming hence this application.
Urgency:
[5] The issue of
whether this application is urgent or not needs to be disposed of as
follows; To the extent that the order sought
to be executed pending
the application for leave to appeal was granted on an urgent basis,
it is my view that given the haste that
such an application for leave
to appeal was launched, followed promptly by the application to
execute, it would defeat the purpose
of the order granted on an
urgent basis to suggest that the matter does not deserve the urgent
attention of the Court. The application
was launched on
29 October 2018 to be heard on 2 November 2018.
Rudman acted with alacrity, and the nature
of the application is such
that it is indeed urgent.
[6] It is further
common cause that Rudman is only acting in the position until
December 2018, and it is apparent that the
matter is time
sensitive. It follows that the probabilities are that the leave to
appeal (which was not launched on an urgent basis),
if granted by
Mabaso AJ, will only come before the Labour Appeal Court long after
December 2018 has passed, thus making the
order sought to be
immediately executed meaningless as it would have lost its practical
effect.
The
legal framework:
[7] Rudman seeks an
order in terms of section 18(1) and (3) of the Superior Courts Act.
This implies a two-staged enquiry to establish
whether exceptional
circumstances exists under subsection (1) for such an order to be
granted, and whether under subsection (3),
she has demonstrated on a
balance of probabilities that she will suffer irreparable harm if the
Court does not grant the order,
and further that the respondents will
not suffer irreparable harm if the Court so orders
[3]
.
[8] In
Mokgatla
and Others v South African Municipal Workers Union and Others
[4]
,
it was held that the previously enjoyed discretion of the Court
when determining whether to grant an order allowing execution pending
the outcome of an appeal or not has since been curtailed by the
enactment of sub-sections (2) and (3). Similarly in
Ntlemeza
v Helen Suzman Foundation
[5]
,
it was held that;
“
In
UFS v Afriforum &
another
[2016] ZASCA 165
(17 November 2016),
para 9, this court stated that it was immediately discernable from ss
18(1) and (3) that the Legislature proceeded from the
well-established
premise of the common law, that the granting of
relief of this nature constituted an extraordinary deviation from the
norm that,
pending an appeal, a judgment and its attendant orders are
suspended.
It
noted that the exceptionality is further underscored by the
requirement of s 18(4)(i); that the court making such an order ‘must
immediately record its reasons for doing so’. I interpose to
state that the reasons contemplated in s 18(4)(i) must relate
to the
court’s entire reasoning for deciding ‘otherwise’
and must therefore also include its findings on irreparable
harm as
contemplated in s 18(3)
”
[6]
[9] The enquiry into
whether exceptional circumstances exist entails a demonstration that
the facts and circumstances of that particular
case are uncommon, unusual and\or out of the ordinary to the extent
that a departure
from the ordinary rule that an appeal suspends the
operation of the judgement in order appealed against should not
apply
[7]
.
In
Incubeta Holdings (Pty) Ltd v Ellis
supra
, Sutherland J held that:
“
[22]
Necessarily, in my view, exceptionality must be fact-specific. The
circumstances which are or may be “exceptional”
must be
derived from the actual predicaments in which the given litigants
find themselves”.
[10]
In this case, it was submitted that
exceptional circumstances exist in that;
a)
Mokgatla as the Administrator acted
ultra vires
in unlawfully terminating Rudman’s appointment, and that the
noting of the leave to appeal allowed him to perpetuate and
benefit
from acting
ultra vires
of his powers;
b)
Mokgatla in law lacked the authority to appoint and/or
terminate the appointment of an acting municipal manager and that the
termination
constituted self-help in conflict with the provisions of
the Constitution of the Republic.
c)
The application for leave to appeal was devoid of merits,
lacked prospects of success, and was instituted with the sole
intention
of rendering the judgment and order of this Court moot.
[11] In opposing the
application on behalf of the respondents, it was submitted that;
a) Mokgatla was
appointed by the North West Provincial Executive Council in terms of
the provisions of section 139(1)(b) of the
Constitution of the
Republic and was effectively the Administrator of the Municipality;
b) Rudman failed to
demonstrate that there exceptional circumstances existed that
favoured the granting of the application, and
further failed to
demonstrate why she was so determined to retain her acting
appointment notwithstanding the lack of approval from
the
Administrator. It was particularly so taking into account that the
Municipal Council lacked the necessary authority when appointing
her
in the position.
c) Rudman had not
revealed exceptional circumstances why she should remain the acting
municipal manager subsequent to her removal
by the administrator. She
remained employed in her original position, and there was nothing
exceptional about acting in the position,
especially since she had no
right to act in the position in the first place. She had merely made
bare allegations that there were
exceptional circumstances without
showing what those were.
d) The respondents
further did not foresee irreparable harm to Rudman should she return
to her position as Divisional Head: Administration,
especially since
she had no entitlement or right to the acting position.
e) On the other
hand, the respondents contend that they would suffer irreparable harm
should an unlawfully appointed individual
continue acting as
municipal manager, in circumstances where the Administrator had
removed her in the exercise of his authority
in terms of the
resolution of the PEC.
f) The respondent
further contended that they had of prospects of success on appeal on
the basis that
i. This Court’s
finding that the municipality was placed under administration in
terms of the provisions of section 139(1)(b)
of the Constitution as
opposed to the provisions of section 139(1)(c) of the Constitution
thereby enabling the municipal council
to continue conducting its
business including the appointment of the acting municipal council,
constituted a misdirection;
ii. The Court
erroneously found that Rudman had a right to the acting appointment,
and committed a misdirection by binding the
Administrator to the
resolution of the Municipal Council dated 12 September 2018,
despite the fact that the Council was
accountable to the
Administrator, and further that the Council required the approval of
the Administrator to execute its decisions.
Evaluation:
[12] As it was
stated in
Incubeta
, the issue is what specific predicament
does Rudman finds herself in if the order is not granted. To the
extent that this application
was brought in her own personal capacity
without the support of the Council which had appointed her in the
position, the ‘predicament’
in question can only be in
regard to her.
[13] Rudman’s
acting appointment was made in terms of a resolution of Council,
which resolution the respondents placed in
dispute, it being
contended that it was not lawfully or validly adopted. Aligned to
that contention is the contention that it is
only the Administrator
that can make such appointment. Those were issues that were canvassed
before Mabaso AJ and dealt with in
the judgment. In a nutshell, it
was found that even though the appointment was suspect in the way it
was concluded, its timing,
taking into account that there was a
resolution that was taken by the PEC, which resolution was
communicated to the Council, the
appointment could only be declared
by a court of law to be invalid. The message therefore was that it
was not within Mokgatla’s
powers as Administrator to simply
terminate the acting appointment of Rudman in the absence of a court
order or having confirmed
the termination with the Municipal Council.
This was so since Mokgatla himself had confirmed Rudman’s
acting appointment,
and further since in terms of the guidelines
issued to the Administrator by the PEC, the Municipal Council was not
dissolved as
contemplated in section 139(1)(c) of the Constitution.
In essence, the Council as concluded by Mabaso AJ, continued to
maintain
its autonomy to make acting appointments.
[14] The submission
made on behalf of the respondents was the Administrator was empowered
to approve the decisions and resolutions
of the Council, which
decisions and resolutions included the appointment of acting
municipal manager, and thus the power to terminate
acting
appointments was corollary.
[15] In this case,
the resolution in terms of which Rudman was appointed to act as
Municipal Manager was adopted on 12 September 2018.
The
Administrator was appointed on 17 September 2018 in terms
of a resolution of the PEC backdated to 1 September 2018.
He was however introduced to the Municipality on 19 September 2018.
At the time that the Administrator took over, the
acting appointment
had already been made in terms of a resolution taken before his
taking over, and whether he could terminate
that appointment depended
on his terms of reference and the authority vested in him by virtue
of the resolution of the PEC and
those of provisions of section
139(1)(b) of the Constitution under which his appointment was made.
In essence, the issue in the
light of the timeline of the
appointments of both Rudman and the Administrator remains whether the
latter could rescind Rudman’s
appointment which was made before
he effectively assumed his position.
[16] In my view, the
circumstances of this case, other than the time sensitive factor, and
barring the politics that are apparently
at play in the Municipality,
are indeed unique and exceptional. Central to this dispute ultimately
is the
principle of legality, lawfulness and
transparency insofar as the powers of an administrator appointed
under the provisions of section
139(1)(b) of the Constitution of the
Republic are concerned. The Administrator was appointed in accordance
with the provisions
of section 139(1)(b) of the Constitution, not
section 139 (1(c)
[8]
.
It cannot in my view be correct that an Administrator, in the absence
of discernable reasons, can simply override a resolution
of a
Municipal Council that continues to enjoy autonomy
albeit
under administration. On Mokgatla’s version the acting
appointment of Rudman was unlawful, and in that case, the issue is
whether he could simply rescind it given his powers.
[17]
Inasmuch
as it is the respondents’ contention that it is not clear as to
the reason that Rudman seeks to cling to the acting
position when she
had no right to that position, it is equally a mystery as to
the reason that Mokgatla (together with the
Executive mayor and other
officials within the Municipality), would in the absence of
discernable reasons, desperately seek her
removal, when her acting
period is due to end on 12 December 2018, and make an
acting appointment of his choice. It may
be correct that Rudman’s
contract of service does not accord her the right to the acting
position. However, that right was
bestowed upon her by the Council
resolution, which as things stand, remains intact.
[18]
Whether
Mokgatla in this case acted
ultra vires
as found by Mabaso AJ is ultimately an issue that can be put to rest
by the Labour Appeal Court in due course if it comes to that
point.
For now though, and in the light of Mabaso AJ’s judgment, the
position is that
prima facie
,
Mokgatla had indulged in self-help in violation of the
authority/resolution of the Council and section 193 of the
Constitution.
[19] A further issue
raised by Rudman was that her predicament was that she faced possible
discipline by the Administrator for implementing
the instructions of
the Municipal Council to continue to act in the position as appointed
in accordance with its standing resolution.
Her fears ultimately
proved to be founded, in that as fate would have it, she was served
with a notice of intention of suspension
on 30 October 2018
by Mokgatla, a day after she had launched these proceedings. The
notice appears to be in response
to tasks she had performed in her
acting capacity,
i.e.
when she addressed correspondence to
National Treasury on 2 October 2018 and to the
Municipality’s bank enquiring
about the Administrator’s
powers in relation to the handling of the Municipality’s bank
account.
[20] On the whole,
the above factors clearly point that the circumstances in this case
are unique and exceptional. The irreparable
harm that Rudman
anticipated proved to be real. The irreparable harm contended by the
respondents in my view appears to be self-created.
In this regard,
the Administrator appointed an acting Municipal Manager in
circumstances where one was appointed already in accordance
with a
Council resolution which was standing, and there is no discernable
evidence from the papers that other than rescinding that
appointment,
he had equally disapproved or rescinded that council resolution. To
this end, it is my view that it is not necessary
for this judgment to
interrogate the merits of the leave to appeal and respondents’
prospects in that regard in due course,
as that is also a matter to
be still decided by Mabaso AJ when determining the application for
leave to appeal. In the end, I am
of the view that Rudman has
satisfied the requirements of section 18(1) and (3) of the Supreme
Courts’ Act, and should thus
be entitled to the relief that she
seeks.
[21] The provisions
of section 162(1) of the LRA enjoins this Court to make an award of
costs upon a consideration of the requirements
of law and fairness.
In my view, and given the facts of this case, I see no reason why
Rudman should be burdened with costs in
circumstances where she was
compelled to approach the Court to defend a decision and position
sanctioned by what is a standing
council resolution. Furthermore, I
see no reason why the Municipality and the Administrator should not
be jointly and severally
liable for such costs.
[22] Accordingly,
the following order is made;
Order:
1. The requirements
of Rule 7 of the Rules of this Court are dispensed with and the
matter is heard as one of urgency.
2. The applicant is
granted leave to execute the judgment and order of Mabaso AJ under
this case number, handed down on 25 October 2018,
pending
the respondents’ application for leave to appeal and any
intended appeal that may follow should the appeal be granted.
3. The First and
Second Respondents are ordered to pay the costs of this application
jointly and severally the one paying the other
to be absolved.
E.
Tlhotlhalemaje
Judge of
the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Y.F Saloojee
Instructed
by:
Scholtz
Attorneys
For
the Respondents:
T.
Mokhatla
Instructed
by:
Kgomo
Attorneys
[1]
Act 10 of 2013, Which provides:
‘
18.
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the Court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision
of the application or appeal.
(2)
Subject to subsection (3), unless the Court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application
for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3) A
Court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the Court to order
otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the Court does not
so order and that the
other party will not suffer irreparable harm if the Court so orders.
(4)
If a Court orders otherwise, as contemplated in subsection (1)-
(i)
the Court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next
highest Court;
(iii)
the Court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an
application
for leave to appeal or of an appeal, as soon as an application for
leave to appeal or a notice of appeal is lodged
with the registrar
in terms of the rules.’
[2]
The Constitution of the Republic of South Africa (Act 108 of 1996)
Provincial
intervention in local government
139
(1) When a municipality cannot or does not fulfil an executive
obligation in terms of the Constitution or legislation, the
relevant
provincial executive may intervene by taking any appropriate steps
to ensure fulfilment of that obligation, including—
a)
issuing a directive to the Municipal Council, describing the extent
of the failure to fulfil its obligations and stating any
steps
required to meet its obligations;
b)
assuming responsibility for the relevant obligation in that
municipality to the extent necessary to —
(i)
maintain essential national standards or meet established minimum
standards for the rendering of a service;
(ii)
prevent that Municipal Council from taking unreasonable action that
is prejudicial to the interests of another municipality
or to the
province as a whole; or
(iii)
maintain economic unity; or
c)
dissolving the Municipal Council and appointing an administrator
until a newly elected Municipal Council has been declared
elected,
if exceptional circumstances warrant such a step.
[3]
University of the Free State v Afriforum and
Another
2018 (3) SA 428
(SCA)
at para [9] – [11]
[4]
Gauteng High Court, Johannesburg Local Division
CASE NO: 21815/2014 at para 5
[5]
Ntlemeza v Helen Suzman Foundation and Another
[2017] ZASCA
93
;
[2017] 3 All SA 589
(SCA);
2017 (5) SA 402
(SCA) (9 June 2017)
[6]
Ntlemeza v Helen Suzman Foundation
supra
at para
[38]
[7]
Incubeta Holdings (Pty) Ltd and another v
Ellis and another
2014 (3) SA 189 (GJ)
[8]
Annexure “RJ23” (Page 103) of the
Main application