1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
(2)
(3) REPORT ABLE: YES/NO CASE NO: 686/2025
OF INTEREST TO THE JUDGES : YES/NO
REVISED : YES/NO
Makotl AJ Jiil-- DATE
In the matter between:
MOGARAMEDI JOEL MAKGATA
and
FETAKGOMO TUBATSE LOCAL MUNICIPALITY
THE MUNICIPAL COUNCIL OF THE FETAKGOMO
TUBATSE LOCAL MUNICIPALITY
COUNCILLOR EDDIE EDWIN MAILA N.O.
(THE MAYOR)
COUNCILLOR VINCENT SHOBA N.O.
(THE SPEAKER) Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
MAVIS MAGOA Fifth Respondent
Delivered: This revised judgment is handed down electronically by circulation to the
parties through their legal representatives' email addresses . The date for the hand­
down is deemed to be 03 June 2025.
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JUDGMENT
MAKOTIAJ
Introduction
[1] Part A of this matter was first before court as an urgent application on 04 February
2025. It was struck off for lack of urgency. Mine is therefore to deal with the
remaining orders sought in terms of Part A of the Applicant's Notice of Motion. I
should explain that the Applicant no longer persues all the extant orders which
make part of the application in Part A of his Notice of Motion. The scope has now
been significantly been reduced.
[2] The specific orders that the Applicant is still asking for from this court are the
following:
[2 .1] A declaratory order to the effect that his suspension has lapsed ex lege on
18 January 2025. This prayer is predicated on the provisions of regulation
6(6)(a) of the Local Government: Disciplinary Regulations for Senior
Managers.
[2.2] That the First to Fourth Respondents be interdicted and restrained from
continuing with the disciplinary inquiry that is currently being persued
against him, pending final determination of the (review) application which is
fully canvassed in Part B of the Notice of Motion.
[2.3] Costs on scale B, including the costs occasioned by the employment of two
counsel.
[3] Much as it was on 04 February 2025, the application is opposed by the municipal
Respondents. For the sake of convenience I group all municipal functionaries
together with the Municipality itself and I refer to them as if they are one party, th
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Respondent or Respondents. The Applicant is singular and I shall either refer to
him in one of his names, as Mr Makgata, or simply just as the Applicant.
Whether this Court has jurisdiction to hear this application
[4] The Respondents raised a technical point to the effect that the Applicant's case
impugns the justification or fairness of his suspension. Accordingly, they contended
that this Court does not have the necessary capacity to adjudicate an unfair labour
practice dispute, referred to in common parlance as jurisdiction. The contention is
by no means novel, having been dealt with in numerous legal authorities.
[5] In Baloyi v Public Protector and Others, 1 for instance, the Court applied the
principle that was enunciated in Chirwa v Transnet Limited2 which is to the effect
that the jurisdiction of the High Court is not ousted ' ... simply because a dispute is
one that falls within the overall sphere of employment relations'. No doubt, the
dispute in this matter plays itself out of employment relations between the Applicant
and the Municipality. Does that, however, negate this court's ability to adjudicate
the application. I doubt and my reasons follow below.
[6] What the Applicant is seeking in this case are legality matters which, in my view,
pertinently invoke the jurisdiction of this Court. The Labour Court too may have
jurisdiction to determine such questions . I do not decide if it does. But the fact that
the Labour Court may have jurisdiction does not imply that this court would not
equally have capacity to decide the case. For instance, the Applicant is aggrieved
by the Municipality 's refusal to comply with mandatory statutory provisions. Legality
questions are central matters for which the Constitution clothes this court with
jurisdiction.3 He calls the conduct unlawful and against the grain of the Constitution.
[7] It is unconvincing therefore the argument of the Municipality that, because the
dispute is about the justification of the suspension, therefore this Court is not
2
3 Baloyi v Public Protector and Others 2022 (3) SA 321 (CC) para 15.
Chirwa v Transnet Limited [2007) ZACC 23; 2008 (4) SA 367(CC); 2008 (3) BCLR 251 (CC) para 60.
Section 169( 1 )(a) of the Constitution.
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empowered to adjudicate it. Equally unpersuasive is the attempt to differentiate
Baloyi from this case and purely on the basis that the former dealt with termination
of employment. Though the facts may vary, and they routinely do, the principles
upon which the Court's jurisdiction is founded remain unchanged .
[8] Baloyi, supra, gave us the following important dictum:
"[43) In this matter, the High Court based its finding on a holistic assessment of whether
the dispute was located "within the compass of labour law" instead of determining
whether the specific causes of action relied on by Ms Baloyi fall within the
jurisdiction of the High Court or the Labour Court (or both). This approach is based
on a misinterpretation of this Court's judgment in Chirwa, where it was expressly
found that the jurisdiction of the High Court is not ousted merely because a dispute
falls within the sphere of employment relations."
[9] I dare not make the same error as the High Court in Baloyi. My understanding is
that the question whether a Court has jurisdiction to adjudicate a dispute lies in the
nature of the cause of action and the relief being asked for. In any case, even if it
may be argued that the case in Baloyi was concerned with dismissal, not
suspension, the Court found jurisdiction in Apleni4 to set aside his suspension
which, in the Court's view, was unlawful. I conclude that this Court has jurisdiction
and will determine the application on its merits.
The facts of the case
[1 O] The Applicant is a senior employee of Fetakgomo Tubatse Local Municipality (the
Municipality). He is the Municipal Manager and accountable directly to Council. He
is alleged to have committed serious acts of misconduct. As a result, he was placed
on precautionary suspension on 18 October 2024. He challenged the suspension
without success.
[11] Subsequent to suspending the Applicant the Municipality appointed Mr LG Verveen
of Verveen Attorneys to investigate the misconduct allegations. The attorney
4 Apleni v President of the Republic of South Africa and Another (65757/2017) [2017) ZAGPPHC 656;
[2018) 1 All SA 728 (GP) (25 October 2017).
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recommended that the Applicant be charged to answer to the misconduct
allegations . His [Verveen] role extended to also serve as the evidence leader or
prosecutor of the misconduct allegations.
[12] On 06 January 2025, ostensibly at his own election, the Applicant was served with
charges of misconduct via email. He confirmed through the same medium to having
received the emailed notice and disciplinary charges. He did this on the same date.
A physical service of the notice and the charges took place the next day on 07
January 2025.
[13] The notice invited the Applicant to attend the disciplinary hearing on 13 January
2025. He was advised that the hearing would take place at the South African Local
Government Association (Salga) Offices in Polokwane. Time was set as 11h00. He
was informed that Adv S Mononyane was appointed as the presiding officer to chair
the hearing. Applicant was also advised that he was entitled to be represented by
either an employee or a suitably qualified person, and at his own costs.
[14] I do not intend to traverse all the exchanges that followed the serving of the notice
to attend the disciplinary hearing. However, worthy of noting is that the Applicant
objected to the conduct of the disciplinary hearing on 13 January 2025. To voice
his objection he addressed a letter through legal representatives to the Municipality
and raised a number of objections. He, amongst others, questioned the lawfulness
of the disciplinary hearing.
[15] His objections included the following:
"6.13 It is our further instructions that the alleged or purported council meetings did not
comply with Sections 29 of The Local Government: Municipal Structures Act, Act
117 of 1998, and that there for the alleged council meetings authorising the
precautionary suspension of our client and the decision to proceed with
disciplinary proceedings, is unlawful."
[16] The Applicant further objected to the service of charges through email. Also, and
apart from complaining that the Municipality had failed to comply with the provisions
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of regulation 6 of the Regulations. He cautioned that his suspension will be
automatically lifted at the expiry of three months, dating from 18 October 2024.
[17] In response the Municipality warned through its own lawyers that the Applicant
should attend the disciplinary hearing and raise his objections before the presiding
officer. It was indicated that the hearing will / may continue in the Applicant's
absence should he fail to attend the disciplinary hearing. Additionally, the
Municipality's lawyers argued that there had been substantial compliance with the
regulations. Also that the Applicant was not prejudiced by the mode of service of
the disciplinary .
[18] The disciplinary inquiry was convened on 13 January 2025 as it had been
scheduled. The Applicant did not personally attend the proceedings . He was
represented by his lawyers who raised objections in limine, including that the
hearing could not take place in a place which is outside of the area of the
Municipality's jurisdiction. That objection was upheld by the presiding officer who
then postponed the case to 24 February 2025.
[19] On that date, 13 January 2025, the proceedings adjourned without the actual
reading of the charges and the Applicant's plea to them. This statement happens to
be the pivot upon which this application oscilates. It is the point of convergance of
the facts and the law. But before I take a sorjourn into the law, there are additional
considerations to make. At first are the reasons advanced by the Municipality on
why the reading of charges did not happen on 13 January 2025. In its view it was
impeded by the Applicant's absence from the proceedings. Then, it accused the
Applicant of bad faith and using tactics to avoid facing the charges against him.
[20] The Municipality charged at the Applicant in one of its lawyers letters5 that ' ... you
and your client seem to be hell bent on playing games, causing delays, and taking
whatever technical points you can think of, with the aim of frustrating the orderly
conduct of the disciplinary process'. As to whether the issues that were raised on
5 Dated 17 January 2025.
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behalf of the Applicant were unmeritorious and purely delaying tactics will become
apparent later in this judgment.
The regulations relied upon by the Applicant
[21] For purposes of this application I concern myself with only the issues that relate to
the application in Part A. They relate to the important question whether the
precautionary suspension has lapsed. Then, the interdictory relief that the Applicant
is asking for. The following regulations require mentioning:
[21.1] Regulation 6( 1) empowers Council to suspend a senior manager on full pay
where allegation have been made that the manager has committed acts of
misconduct. Council will suspend a senior manager if it has reason to
believe that the presence of the manager at workplace may: jeopardise
investigations ; endanger the well-being or safety of any person or municipal
property; may be detrimental to the Municipality; where senior manager
may interfere with the investigations ; or if he or she may commit more acts
of misconduct. It is common cause that Council deemed it appropriate to
place the Applicant on precautionary suspension . The lawfulness or
otherwise of the decision is not before.
[21.2] Regulation 6(6)(a) stipulates that where a senior manager has been placed
on suspension the Municipality must commence disciplinary hearing within
a period of three (3) months. It further states that the suspension will lapse
automatically if the disciplinary hearing does not commence within the said
period of three months. The period of three months fell on 18 January
2025. By then the charges of misconduct had not yet been read.
[21.3] At regulation 10(1 )(a) it is commanded that disciplinary hearing must
commence within three months of a decision to institute disciplinary inquiry.
Paragraph (b) sets out the timeframes by stating that the hearing must start
'... not less than seven days ... ' calculated from the day on which the
disciplinary charges are served. If it is accepted that the charges were
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validly served upon the Applicant on 06 January 2025, then the regulatory
injunction to not commence the hearing in less than seven days would be
offended. The seventh day fell on the date on which the hearing was to
take place.
[21.4] Subregulation 14(3) espouses that the evidence leader commences a ' ...
disciplinary hearing by reading our the charges ... ' which are preferred
against a senior manager. I have mentioned that the charges were not read
out at the hearing on 13 January 2025.
[22] Binding provisions of legistation have to be given effect to. The regulations are
subordinate legislation. They are binding to all the parties. Ensuring compliance
with subordinate legislation, it has to be said, is an advancement or the upholding
of the rule of law. The exception will be, of course, where the facts of a particular
case militates against it, that is, where compliance was or is rendered impossible
by some factor or more.6 By this I mean that if the Municipality has failed to
commence a hearing within three months, then what the law requires must be
done.
[23] It is axiomatic from the pleadings that the parties approach the question of what
must happen from different points. They point fingers at each other. The
Municipality alleges that commencing the hearing was rendered impossible only by
virtue of the Applicant's non-attendance of the proceedings on 13 May 2025. That
the Applicant was employing delaying is not factually correct. The Applicant was
represented at the inquiry by a legal representative who objected to the
proceedings taking place at a place outside to the Municipality 's jurisdiction. The
opposition was upheld. The result was a postponement of the disciplinary inquiry.
[24] Further, it was noted that the Applicant had not been granted the full seven days to
apply for further particulars , if he so wished. This led to the presiding officer issuing
6 Barkhuizen v Napier (CCT72/05) [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) (4
April 2007) para 68.
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directives as to when such requestion should be made. That was another way in
which the Municipality was accused of flouting the regulations .
Whether the Applicant's suspension lapsed automatically
[25] Regulation 6(6)(a) tells us in unequivocal terms that the suspension will lapse if the
disciplinary hearing is not commenced within three months. So, there can be no
doubt as to what the regulation espouses to serve, which is twofold. The first is that
it encourages local government employers to speed up their investigations into
allegations of misconduct against a senior manager and to start the inquiry without
delays. With regard to the second, the regulation requires the hearing to commence
in earnest within three months, to protect the interests of the employee who is on
suspension.
[26] In Tshabalala v Moqhaka Local Muncipality7 (Tshabalala) the court had occasion to
distill the implications of the regulation. It stated amongst others that:
"7. What this construction contemplates is a disciplinary process that is
commenced by the service of charges on the employee and which culminates in
the commencement of the disciplinary hearing. A disciplinary hearing is an
integral part of the disciplinary process or proceedings; it does not constitute
the proceedings in themselves. Read sequentially, the regulations contemplate
that the disciplinary hearing is convened by the presiding officer and
commenced by the reading of the charges to the senior manager accused of
misconduct."
[27] That the charges were not read is common cause. The Municipality 's contention is
that the charges could not be read because of the obstructive conduct of the
Applicant. It is not that simple. The Municipality only has itself to blame. I say this
because the Municipality committed a litany of errors. It waited until the very last
minute to serve the charges against the Applicant. When it did so it failed to afford
him the full seven days to decide whether to ask for further particulars or not.
Worse, the venue for the disciplinary inquiry was outside of its jurisdiction area. All
these in breach of the clear provisions of the regulations .
7 (JA88/2024) [2024] ZALAC 60 (21 November 2024).
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[28] I do not agree with the Municipality's attempt to blame the Applicant for standing his
ground and refusing to accede to the disciplinary hearing taking place outside of
the area of jurisdiction. It is not a tactic, nor one that the Court should frown about,
for the Applicant to have insisted that the Municipality should do things according to
binding laws. The Municipality was at all times represented by lawyer(s) when
investigating and preffering misconduct charges against the Applicant. It had
access to legal advise. Thus, it failure to start the hearing was entirely of its own
doing. In any case, that point is moot because the presiding officer upheld the
technical objection. He issued directives on the futher conduct of the proceedings .
[29] What the Court did in Tshabalala was to draw a distinction between two different
terms, which are proceedings and hearing. How these terms are used in the
regulations signifies a distinction between those two words. Regulation 14(3) tells
that that a hearing, quite apart from proceeding , commences when the charges are
read out to the senior manager concerned. The LAC in Tshabalala visited with
approval to the dictum that was posited in Mgengo v Lekwa-Teemane Local
Municipalit~ in which it was held that the issuing of disciplinary charges did not
commence the disciplinary hearing.
[30] I am persuaded that the failure by the Municipality to commence the disciplinary
hearing within three months triggered the application of regulation 6(6)(a). The
Municipality can only look at itself with some embarrassment for its failure to follow
the law. I conclude that the suspension of the Applicant is lifted automatically, ex
lege. In my view the Applicant should be allowed to forthwith return to his post as
Municipal Manager and to execute the duties for which he is contracted to perform
at the Municipality.
Whether disciplinary proceedings ought to be interdicted
[31] The Applicant is asking for temporary interdict against the initiated disciplinary
preceedings . There are a number of considerations here. The Applicant first
8 Mgengo v Lekwa-Teemane Local Municipality and Others (J452/20) [2020) ZALCJHB 255 (11 June
2020).
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contends that the decision by Council to set the disciplinary proceedings in motion
was taken unlawfully. He intends to, in Part B of the Notice of Motion, have the
decision reviewed and set aside. Then there is the whole question about the
appointments of the evidence leader and the presiding officer. Those decisions,
too, the Applicant impugns and is intent on seeking to have them reviewed and set
aside.
[32] On behalf of the Municipality it was contended that the application has not saitisfied
the requirements for interim interdict. The requirements are well known and I plan
not to regurgitate them.9 None of the requirements is a stand alone. They must all
exist for the Applicant to be afforded interdictor relief.
Prima facie right
[33] The parties are contractually bound to each other through an employment
agreement. In so far as proving prima facie right, I do not believe that it can be
contested that the Applicant has a right to not be subjected to an illegality or
unlawful actions by the employer, even if such right may be open to doubt.10 He
has the contractual right to be at his post and to perform the duties attached to the
position. I am not, by any means, undermining the employer's concomitant right to
keep order by disciplining misconducting employees. When maintaining discipline
at its workplace the Municipality must comply with the laws that bind it.
Irreparable harm
[34] More than ten years ago the court in Nothnagel v Karoo Hoogland Municipality11 it
was recognised the possibility that a party who has been placed on precautionary
suspension from duty may still suffer irreparable harm. The court held in that matter
that:
9
10
11 City of Tshwane Metropolitan Municipality v Afriforum and Another (157/15) [2016] ZACC 19; 2016 (9)
BCLR 1133 (CC); 2016 (6) SA 279 (CC) (21 July 2016) at para 49.
Ibid, para 50.
Nothnagel v Karoo Hoogland Municipality and Others (C 431/12) [2012] ZALCCT 19; (2014) 35 ILJ 758
(LC} (11 June 2012) para 38.
12
"38. Although the applicant is being paid, he is still suffering ongoing harm that cannot
simply be remedied in due course, should the allegations against him prove to be
unfounded in the ensuing three months (or longer) provided for in regulation 6(6)."
[35] The Applicant has been on precautionary suspension since 18 October 2024. He
challenges the foundation of the disciplinary processes , including charges, but
actually starting with the decision by Council which he alleges was taken unlawfully.
If he is successful in that challenge, even at a later stage, he would have endured
the process to the fullest.
Balance of convenience
[36] The disciplinary inquiry instituted against the Allicant has not moved far. I have
already pointed out the challenges that were encountered right from the beginning
of the disciplinary proceedings, whereby the Municipality took a misstep of
scheduling to host the inquiry on the seventh day from the date of service of the
misconduct charges and picking a venue for the hearing that was outside of its area
of jurisdiction.
[37] I am mindful that in Lekabe v Minister of Justice and Constitutional Development12
(Lekabe ), in which the provisions of the Senior Management Handbook in the
Public Service was at issue, it was held that the employer's right to discipline its
employee is not fatally affected by the failure to adhere to the timeframes stipulated
in legislation or policy. An interdict, if granted, will not permanently take away the
Municipality's right to discipline the Applicant. The converse may be true where an
employee may end up being terminated from employment in unlawful proceedings.
To reverse that will be cumbersome, taking into account that once dismissed the
employee will have no income that he currently derives as salary.
[38] The interdict sought will exist temporarily until the final determination of the review
application in terms of Part B of the Notice of Motion is reached. What is not
permanently taken away is the right of the Municipality to discipline Mr Makgata.
12 Lekabe v Minister Department of Justice and Constitutional Development (J1092/08) [2009] ZALC 18;
(2009) 30 ILJ 2444 (LC) (5 February 2009).
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[39] My considered view is therefore that the balance of convenience favours the
granting of the interdictory relief. I do not stop here as I have to consider whether
the other requirements have also been satisfied.
Absence of an alternative remedy
[40] On behalf of the Municipality it was submitted that the Court should avoid being
drawn into granting an interdict at this stage. That the Applicant can still institute
review application once the disciplinary inquiry is concluded. It was impressed upon
me by counsel for the Municipality that the Court does not easily temper with
incomplete disciplinary proceedings . This contention has its foundation in, inter alia,
Jiba v Minister of Justice13 (Jiba). This authority was decided over a decade ago by
the Labour Court which explained when and how a Court may entertain a case
arising from an incomplete disciplinary process. As I have pointed out, the intention
is the avoidance of piecemeal approach to cases.
[41] In Jiba the Court held that though the it will have jurisdiction to entertain an
application to intervene in uncompleted disciplinary proceedings, it will not do so
save where exceptional circumstances exist. The court held much the same in an
earlier decision in Lekabe, supra. The general principle enunciated, as above, was
also affirmed by the Court in Booysen v Minister of Safety and Security and
Others 14 which restated that intervention in incomplete disciplinary cases was to be
discouraged, save in cases where exceptional circumstances may necessitate it.
[42] Then, recently in Nkosi v Alfred Duma Local Municipality and Others15 the principle
that the Court will intervene at interlocutory stages only in exceptional
circumstances was again reaffirmed. The Court however went on to consider the
nature of the dispute that lay before it and found that it was not merely a question
procedural unfairness . It went on to state that:
13
14
15 Jiba v Minister of Justice and Constitutional Development and Others (J167/09) (2009] ZALC 57;
(2010) 31 ILJ 112 {LC); (2009] 10 BLLR 989 {LC) (19 May 2009) at para 17.
(2011] 1 BLLR 83 {LAC) (1 October 2010.
(D224/2024) (2024] ZALCD 22 (3 July 2024) at para 39.
14
"[39) ... ; the dispute concerned the fundamental legality of the process as a whole. If
allowed to run its course, unimpeded by this court's intervention, Mr Nkosi will be
obliged to endure a disciplinary inquiry which has been established, prima facie, to
be unlawful, and will be further obliged to risk the termination of his services by the
Chairperson, the validity of whose appointment is in serious doubt. To require Mr
Nkosi to subject himself to such process, by declining to issue the order he seeks
at this stage, would be entithetical to the purpose for which this court was
established."
[43] Why should the Applicant in this case have to be subjected to a process the legality
of which is being challenged? I have traversed the application and cannot find good
reason for it.
[44] The issues out of Nkosi are so similar with those that arise in this application. At
issue in this case, as I have already pointed out, is the Municipality 's initial decision
to subject the Applicant to disciplinary inquiry. The facts are clear that he is also
challenging the lawfulness of the appointments of both the evidence leader and the
presiding officer.
[45] I find that, on the balance of the facts of this case, the interdictory relief sought by
the Applicant is warranted. I am fortified in this regard by what the Court held in
Apleni v President of the Republic of South Africa16 where it envisaged protection
to the rule of law and the public purse through litigation of this nature, even on
urgent basis where urgency requirements may be satisfied.
Costs
[46] Both parties have asked for costs in their favour. Through the default position is
that costs follow the result, it is trite that the awarding of costs rests in the discretion
of the court. It is a discretion that must be exercised judiciously.
[4 7] The Applicant has succeeded in two respects. First, in so far as the question of his
suspension is concerned. The suspension is uplifted by operation of law. Then, the
second success relates to the interdict. In that respect too the Applicant managed
16 Apleni v President of the Republic of South Africa and Another (65757/2017) [2017) ZAGPPHC 656;
[2018) 1 All SA 728 (GP) (25 October 2017) at para [10).
15
to persuade me that he ought to not be subjected to a process the foundation of
which raises serious legality questions , which he is challenging .
ORDER
[48] The following order is made:
[i] It is hereby declared that Applicant's precautionary suspension has
lapsed in terms of regulation 6(6)(a) of the Disciplinary Regulations
for Senior Managers.
[ii] The Municipality is ordered to forthwith allow the Applicant to resume
his duties as it Municipal Manager.
[iii] The Municipality is hereby interdicted and restrained from persuing or
continuing with the disciplinary proceedings currently underway
against the Applicant pending the final determination of the review
application in Part B of the Notice of Motion.
[iv] The Respondents are ordered to pay the costs of this application,
jointly and severally the one paying the others to be absolved, which
costs shall be calculated on party and party scale B, including the
costs of counsel.
APPEARANCES:
HEARD ON
JUDGMENT DELIVERED ON MZMAKOTI
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
28 MAY 2025
02 JUNE 2025
JUDGMENT REVISED ON
For the Appellant:
For the Respondents :
Instructed by: 16
03 JUNE 2025
Adv Liversage SC
Adv Marx
JAJ CAN DEN HEEVER ATTORNEYS
HENSTOCK VAN DEN HEEVER ATTORNEYS
Adv. M Gwala SC
KA-MBONANE COOPER ATTORNEYS
C/O CLARRENCE MANGENA INC
Polokwane