About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2018
>>
[2018] ZALCD 9
|
|
King Cetshwayo District Municipality v Nhlabathi and Others (D1310/16) [2018] ZALCD 9 (31 July 2018)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT DURBAN
Case no: D 1310/16
In
the matter between:
KING CETSHWAYO
DISTRICT
MUNICIPALITY
Applicant
and
ZANDILE FLORENCE
NHLABATHI
First
Respondent
ASHNEE LAMBERT
(
N.O.
)
Second
Respondent
SALGBC
Third
Respondent
THADAZILE
FRANCISCA MNGUNI
Fourth
Respondent
Heard
:
29 November 2017
Delivered
:
31 July 2018
Summary:
(review – unfair labour practice – appointment to
position of s 56 manager under Municipal
Systems Act – claim
successful candidate not competent – MEC for local government
ought to have been joined –
award set aside – disclosure
of panellist’s interest or relationship with a candidate
(
obiter
))
JUDGMENT
LAGRANGE
J
Background
[1]
This is an opposed review application of an unfair labour practice
determination relating to promotion. Condonation applications
in the
matter were dealt with previously on 7 September 2017 and the court
does not have to address those.
[2]
The first respondent in this matter, Ms Z Nhlabati (‘Nhlabathi’)
had unsuccessfully applied for promotion to the
post of Deputy
Municipal Manager: Planning and Economic Development, which was
advertised on 4 August 2013.
[3]
Nhlabathi alleged that the successful candidate, the fourth
respondent, Ms T Mnguni (‘Mnguni’) was not competent
to
fill the post and the panel had failed to consider her own work
experience. Secondly, she claimed that there had been irregularities
in the establishment of the selection panel, its method of weighting
candidates and that a member of the panel had failed to disclose
their business interest with the successful candidate.
[4]
Apart from herself and Mnguni, one other candidate was shortlisted
for interviews. Nhlabathi and the unsuccessful candidate
scored 60.8%
and 60% respectively in the interviews, whereas Mnguni obtained a
score of 86.7%.
[5]
The municipal manager, who sat on the three-person selection panel
had a previous business relationship with Mnguni, which was
not
disclosed before or after the interviews.
[6]
At the arbitration, it was conceded by the secretary of the panel, an
advocate that, it was a pre-requisite and not a discretionary
matter
to disclose such an interest.
[7]
The weighting system adopted by the panel was to allocate 80% to the
outcome of the interview and 20% to the competency assessment.
The
weighting system had been decided after interviews had already taken
place. Nhlabathi claimed that the weighting system adopted
by the
panel was also contrary to chapter 3 of the recruitment and selection
guidelines.
The
award
[8]
At the arbitration, a preliminary jurisdictional objection was raised
by the applicant (‘the municipality’). It
was common
cause that the disputed post was a post established in terms of
section 56 (5) of the Local Government: Municipal Systems
Act
(‘MSA’). The applicant argued that the arbitrator had no
jurisdiction to hear the matter, but the arbitrator decided
that
until the appointment to place the applicant in the post was taken,
she was not an employee under section 56 and accordingly,
she had
jurisdiction to hear the matter.
[9]
Neither the municipal manager nor Mnguni testified at the arbitration
hearing.
[10]
The arbitrator found that the municipal manager’s duty to
disclose his past business relationship with Mnguni was not
simply a
moral question but was a requirement in terms of the regulations.
Panel members were also provided with disclosure and
confidentiality
forms they were required to sign and no rational explanation was
provided for the failure to disclose the business
relationship. The
arbitrator felt this went to the heart of the credibility of the
panel though she also found there was no evidence
to suggest that the
outcome of the interview would have been different if disclosure had
made.
[11]
Consequently, the arbitrator decided the failure to disclose prior
business relationship constituted an unfair labour practice
and set
aside appointment of the successful candidate and ordered the
reconstitution of the interview process with all shortlisted
candidates within 60 days of the award.
The
review
[12]
In its founding papers, the applicant persisted on review with the
jurisdictional challenge to the arbitrator’s authority,
but
belatedly abandoned this point, when it filed its heads of argument.
Ultimately, it only relied on two grounds of review.
The
arbitrator was unreasonable in her interpretation of the obligation
on a panellist to disclose his business relationship with
Mnguni.
[13]
The
municipal manager claimed that the evidence before the arbitrator
showed that his business relationship with the successful
candidate
ended when he had ceased to be a member of the same close corporation
by 20 October 2008. By the time the post was advertised
and when the
interviews were conducted in 2014, there was no interest or
relationship and had not been one for five years. Therefore,
there
was nothing to disclose. In this regard, the municipality points out
that Regulation 12(5) of Regulations on Appointment
and Conditions of
Employment of Senior Managers
[1]
made under the MSA prescribe that “(a) panel member must
disclose any interest or relationship with shortlisted candidates
during the shortlisting process.”
[14]
Nhlabathi retorts that the role of the deponent as the municipal
manager extends beyond the provisions of the regulation and
that
there was a duty to disclose the past business relationship.
Nhlabathi also points out that the municipal manager’s
averments in his founding affidavit were not part of the evidence
before the arbitrator, so even if the duration or timing of the
business relationship was a relevant consideration, that issue was
not raised before the arbitrator. One of the difficulties raised
by
regulation 12(5) is whether the ‘interest’ or
‘relationship’ refers strictly to a current interest or
relationship at the time the interview panel is convened. It is easy
to see that a narrow reading of the regulation as referring
strictly
to contemporaneous interests or relationships with a candidate could
defeat the object of the regulation. In any event,
as this
application falls to be decided on the issue of non-joinder, it is
not necessary to decide this issue.
[15]
The question of an alternative remedy being exhausted, or
alternatively the issue of non-joinder raised by the applicant
concerns
the effect of certain provision of s 56 of the MSA. The
relevant provisions state:
56
Appointment of managers directly accountable to municipal managers
(1)
(a) A municipal council, after consultation with the municipal
manager, must appoint-
(i)
a manager directly accountable to the municipal manager; or
(ii)
an acting manager directly accountable to the municipal manager under
circumstances and for a period as prescribed.
(b)
A person appointed in terms of paragraph (a) (i) must at least have
the skills, expertise, competencies and qualifications as
prescribed.
(c)
A person appointed in terms of paragraph (a) (ii) may not be
appointed to act for a period that exceeds three months: Provided
that a municipal council may, in special circumstances and on good
cause shown, apply in writing to the MEC for local government
to
extend the period of appointment contemplated in paragraph (a), for a
further period that does not exceed three months.
(2)
A decision to appoint a person referred to in subsection (1) (a)
(ii), and any contract concluded between the municipal council
and
that person in consequence of the decision, is null and void if-
(a)
the person appointed does not have the prescribed skills, expertise,
competencies or qualifications; or
(b)
the appointment was otherwise made in contravention of this Act,
unless
the Minister, in terms of subsection (6), has waived any of the
requirements listed in subsection (1) (b).
(3)
If a post referred to in subsection (1) (a) (i) becomes vacant, the
municipal council must-
(a)
advertise the post nationally to attract a pool of candidates
nationwide; and
(b)
select from the pool of candidates a suitable person who complies
with the prescribed requirements for appointment
to the post.
(4)
The municipal council must re-advertise the post if there is no
suitable candidate who complies with the prescribed requirements.
(4A)
(a) The municipal council must, within 14 days of the date of
appointment, inform the MEC for local government of the appointment
process and outcome, as may be prescribed.
(b)
The MEC for local government must, within 14 days of receipt of the
information referred to in paragraph (a), submit a copy
thereof to
the Minister.
(5)
If a person is appointed to a post referred to in subsection (1) (a)
in contravention of this Act, the MEC for local government
must,
within 14 days of becoming aware of such appointment, take
appropriate steps to enforce compliance by the municipal council
with
this Act, which steps 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.
…
[16]
The municipality contends that Nhlabathi should have first given the
MEC for local government and opportunity to exercise his
powers under
s 56(5) before referring her complaint to arbitration, or at least
should have joined the MEC as an interested party
in the arbitration.
[17]
The
municipality relies in this regard on the judgment of the
Labour
Appeal Court in Merafong City Local Municipality v SA Municipal
Workers Union & another
.
[2]
In that matter the union
had obtained an interdict preventing the appointment of a municipal
manager. The LAC found that the applicants
in the interdict
proceedings should have invoked the alternative remedy provided by s
54 of the MSA, viz:
(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 for 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.
(9)
Where an MEC for local government fails to take appropriate steps
referred to in subsection (8), the Minister may take the steps
contemplated in that subsection.
In
Merafong,
the LAC
found that even though the applicants for the interdict had alerted
the MEC to their complaint about the appointment, and
the MEC had not
responded, they still ought to have sought the minister’s
intervention under s 54(9) before applying for
an interdict.
[3]
[18]
Section 54 and 56 of the MSA are not identical in the internal
remedies they provide for appointments in contravention of the
Act,
but clearly s 54 does provide a role for the MEC to intervene in
relation to appointments of s 56 managers, which are alleged
to be in
contravention of the MSA.
[19]
It is true that, unlike in
Merafong
, we are dealing here with
an unfair labour practice dispute and not an interdict. In the case
of an interdict, the existence of
an alternative, internal, remedy is
sufficient to deny a party urgent interdictory relief. Nevertheless,
it was clearly a significant
part of Nhlabathi’s case at
the arbitration that Mnguni did not have the competence to be
appointed to the post. To
all intents and purposes, that is the same
as saying that Mnguni was not a suitable person for the panel to
select for appointment,
which would mean her appointment was in
contravention of s 56(1)(b) and s 56(3)(b) of the MSA. By
virtue of s 56(5) the MEC
for local government would have an interest
in appointment in contravention of the MSA and even if it can be
argued that Nhlabathi
need not have directly called upon the MEC to
take steps under that provision, the MEC ought to have been joined as
a party to
the arbitration proceedings.
[20]
Nhlabathi
argued that the court should not entertain this issue because it had
never been pleaded. However, it is trite law that
an issue of
non-joinder can be raised even at the stage of an appeal
[4]
,
so I am bound to consider it.
[21]
I appreciate that, at the time the arbitrator decided the matter the
LAC judgment in
Merafong
was relatively recent and had not yet
appeared in the published law reports, so she was no doubt unaware of
it, as the parties probably
were also. Nevertheless, I am bound to
follow the principles set out there.
[22]
As the review succeeds on the basis of non-joinder, it stands to be
remitted to arbitration to correct that defect, but given
the elapse
of time, I am reluctant to compel the parties to re-enter the fray on
the issue. Accordingly, the award must be set
aside but whether the
arbitration is re-opened is a matter for Nhlabathi to elect to
pursue.
[23]
As the matter is decided on a point raised belatedly, it would be
inappropriate to award the applicant its costs.
Order
[1]
The Second Respondent’s award issued on 29 August 2016 under
case number KPD 091422
is reviewed and set aside.
[2]
In the event First Respondent wishes to pursue her unfair labour
practice claim, within
30 days of the date of this judgment, she
must:
2.1
request the Third Respondent in writing to re-enrol the matter for
arbitration before an arbitrator
other than the Second Respondent and
the Third Respondent must comply with such request, and
2.2
Simultaneously apply to join the relevant MEC for Local Government as
a party to the arbitration
proceedings.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
R
Pillemer instructed by
Ndwandwe
& Associates Inc.
FIRST
RESPONDENT:
J
Forster of Philip Walsh Inc.
[1]
GN 21 of 17/01/14 (GG 37245).
[2]
(2016) 37
ILJ
1857
(LAC)
[3]
At 1875-6 paras 74-76.
[4]
See
Bowring
NO v Vrededorp Properties CC and Another
2007
(5) SA 391
(SCA)
at
398, paras [19] to [21], where the SCA entertained the objection on
appeal, even though it ultimately dismissed the plea of
non-joinder
on its merits.