IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA )

Case No.: 3580/2020
Reportable: YES/NO

In the matter between:

BEKENTLA ZWELITSHA Applicant

and

KING SABATA DALINDYEBO Respondent
LOCAL MUNICIPALITY (K.S.D


JUDGMENT

Cengani -Mbakaza AJ

[1] In this matter the applicant is a major male South African citizen and an employee at King Sabatha Dalindyebo Local Municipality (the municipality ). The municipality is an organ of the State within the local sphere of government established in terms of section 12 of the Local Government:
Municipal Structures Act 117 of 1998.

[2] The applicant’s permanent position with the municipality is that of an
Inspector, a role he held since May 2005. He commenced employment with the
municipality as Acting Assistant Security Manager between May and June 2006. As
per contract, it was agreed that he would receive an acting allowance which
according to him was never paid. The applicant now seeks the relief that essentially
entails enforcing the terms of the acting appointment contract.

[3] In terms of the agreement , it was agreed that the position would endure until
he was relieved of his acting appointment, the situation was reviewed, or the post
was filled. The acting allowance would be paid based on difference between his
salary and the commencement notch of post of level 8 for the duration of his acting
appointment. The acting appointment as Acting Assistant Security Manager was at
post level 12.

[4] The applicant avers that he has been in the acting capacity since 2006 , the
post was never filled and he was never relieved of his duties. He is currently
performing the duties of the Acting Assistant Security Manager . In October 2018, the
acting allowance was not paid and despite his enquiries, he received no valid
responses. Therefore, so he avers, the termination of the acting allowance was
unlawful and arbitrary, with malicious intent to cause financial injury to him and his
family.

[5] In July 2019, he was paid, however, later in 2019 his acting allowance was
not paid. Despite his enquiries, nothing came forth. Upon further enquires with the
relevant authorities, the Municipal Manager promised to call a meeting to resolve the
issue, however, that never materialised.

[6] The applicant contends therefore that the municipality is under a duty to act
fairly , stemming from the principle of legality and not the Promotion of Administrat ive
Justice Act1 (PAJA) . The municipality, so he contends , ought to have acted
transparently and observed the rules of accountability before terminating the
contractual rights.

[7] He referenced to the Basic Conditions of Employment Act2 (BCEA) which
defines the concept of remuneration as well as the clause that prohibits deductions
from an employee’s remuneration. In a nutshell, the applicant avers that the conduct
of the municipality not only relates to the termination of his acting appointment but
also encompas ses the deduction of his remuneration.

1 Act 3 of 2000.
2 75 of 1997 .

[8] The municipality through an affidavit deposed to by Ngamela Pakade, one of
its employees, states that it was erroneous for the applicant to have been paid the
acting allowance from October 2018 to 2019 based on the following reasons: that,
the letter of appointment as the Assistant Security Manager, which is dated 05 June
2006 reads as follows,

‘I have pleasure to inform you that the Municipali ty Manager has approved that
with effect from 01 June 2006 you be appointed temporarily to act in the
position of Assistant Security Manager in the “Protection Service Division of the
Public Safety and Security Department , until you are relieved of your acting
appointment or the situation is reviewed or the post is appropriately filled,
whichever occurs first.’

[9] The municipality asserts that the 2004 organogram outlined the post in similar
terms to the applicant’s acting appointment letter. Subsequently in 2019, the 2004
staff establishment was abolished and replaced with 2010 staff establishment . There
was no longer a post corresponding to the one contended by the applicant.

[10] In this regard, the municipality through Mr Kunju SC referenced to the
approved staff establishment dated June 2010. It asserts that the applicant is aware
that on 30 July 2012, he was advised of the changes through paragraph 1 of a letter
dated 27 June 2012. The relevant section of the letter reads :

‘It now gives the Municipality pleasure to inform you that you have been placed
with effect from 01 July 2020, in a permanent capacity in the post of Senior
Inspector (Task Grade T7) in the Access Control Section in the
community Safety Directorate’ .

[11] The municipality avers therefore that the post contended by the applicant is
non-existent. Effectively, the 2010 staff establishment and the letter dated 27 June
2012, signed by the applicant on 30 July 2012, brought about changes and reviews
to his situation.

[12] In his reply, the applicant denies that the situation was reviewed or post filled
as contended by the municipality. He avers that the organogram attached to the
answering affidavit refers to the Protection Service Division, in which he was
appointed to act and nothing was reviewed in that division.

[13] The applicant further notes some contradictions in the municipality’s
answering affidavit, stating that the post can only be filled if it is existent. Therefore,
its allegations that the post is non-existent contradict a statement that it was filled.

[14] Mr Zono, the applicant’s legal representative , relies on the number of
principles, specifically s 33 of the BCEA which provides:

‘33(1) An employer must give an employee the following information in writing
on each day the employee is paid:
(e) the amount and purpose of any deduction made from the remuneration.’

[15] In his submiss ions, he argues that the s 33 provision would serve as notice of
termination of the acting appointment, and in the absence of such notice, the
termination is invalid. He further bemoans the fact that the applicant is performing
the duties of Assistant Security Manager, now referred to as Acting Principal Officer,
yet he is not receiving the corresponding allowance.

[16] The question of whether a breach of contract occurred must be considered in
the context of the employment contract’s terms and the alleged breach. To
determine this, a clear interpretation of the letter dated 05 June 2006 which outlined
the contract’s conditions is essential. This letter to the applicant provides crucial
insight into the agreement and its purported breach .

[17] Upon examination of the papers filed, it is evident that the terms and the
conditions of employment contract are not in dispute. However, the applicant’s
concerns persist due to the post not being filled and the organisational structure
remaining unchanged. This argument triggers the application of the Plascon -Evan s
Rule which was referred to by both parties in their argument. In National Director of
Public Prosecutions v Zuma ,3 the court said:

‘Motion proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts. Unless the
circumstances are special, they cannot be used to resolve factual issues
because they are not designed to determine probabilities . It is well established
under the Plascon -Evans rule that where motion proceedings disputes of fact
arise on affidavits, a final order can be granted only if the facts averred in the
applicant’s (Mr Zuma )affidavits, which have been admitted by the respondent
(the NDPP) , together with the facts alleged by the latter, justify such order. It
may be different if the respondent’s version consists of bald or uncreditworthy
denials, raises fictitious dispute s of fact, a palpably implausible, far-fetched or
so clearly untenable that the court is justified in rejecting them merely on the
papers …’[footnote omitted].

[18] Upon closer examination, a persuasive case emerges in favour of the
municipality due to the subsequent letter confirming the applicant’s promotion, an
indicative of a review of the staff establishment. Furthermore, the organisational
structure, despite being disputed, clearly shows that the post that the applicant was
acting in is no longer available in the organisational structure. Mr Zono’s
acknowledgment that the post of the Assistant Security Manager is now referred as
Acting Principal Officer actually strengthens the municipality’s argument that
significant changes have been made to the organisational structure. The letter
confirming the applicant’s promotion further evidences a change in his employment
contract, superseding his previous role as Acting Assistant Security Manager.

[19] I disagree with Mr Zono’s assertion at paragraph s 27.1 and 28 of his heads of
argument where he states that adherence to the provisions of s 33 (1) (e) of the
BCEA would serve as a notice of terminati on of contract had it been adhered to.
Section 33 (1) (e) applies to the contracts in force requiring the employers to
transparently state the details of the employees’ pay, including earnings, deductions

3 2009 (2) SA 277 (SAC) at paragraph 26 .
and net pay, typically through a salary advice or payslip. This is distinct from the
notice of termination of contract, which is governed by s 37 of the BCEA. Therefore,
the reliance on s 33 of the BCEA is in this regard misplaced.

[20] The explicit contractual terms between the municipality and the applicant, the
finding in paragraph 18 of this judgment, the letter of promotion which served as a
formal notice of the changes of the conditions of employment as well as the
applicant’s partial acknowledgment of the changes in the organisational structure
collectively suffice to establish a fair process and adherence to the principle of
legality.

[21] Absent a contrac tual breach of contract between the two parties, the question
that arises is whether granting a mandatory interdict is appropriate, specifically given
its proximity to the prohibitory interdict. Generally in the context of labour dispute, the
court has a discretion to grant an interdict, particularly where a breach of contract is
at issue. For the applicant to succeed , they must establish three key principles: a
clear right, a reasonable apprehension of harm and the absence of another legal
remedy.

[22] In the present matter, the applicant has failed to establish a clear right, as no
breach of contract exists. Considering the terms and the conditions of the
employment contract which were understood by the applicant, there is no reasonable
apprehension of harm rendering a repetition of what has already been noted in the
judgment unwarranted. Consequently, the applicant’s legal remedy lies with
acknowledging the review of the Acting Assistant Security Manager’s position.
Therefore, this application cannot succeed.

Order

[23] The following order is issued:

1. The application is dismissed.
2. Each party shall pay its own costs.


_________ ___________
N CENGANI -MBAKAZA
JUDGE OF THE HIGH COURT (ACTING)


APPEARANCES :

For the Applicant : Mr A.S. Zono
AS ZONO &ASSOCIATES
MTHATHA

Counsel for the Respondent : Adv. Kunju SC
Instructed by : JOLWANA MGIDLANA INC
MTHATHA

Date heard : 13 March 2025
Date delivered : 01 July 2025