166336IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J753/99
In the matter between:
WILLIAM RALPH JOEY LANGEVELDT Applican
t
And
VRYBURG TRANSITIONAL LOCAL COUNCIL First
Respond
ent
J HIEMSTRA N.O Second
Respond
ent
J P STEMMETT N.O. Third
Respond
ent
PREMIER (NORTH WEST PROVINCE) N.O. Fourth
Respond
ent
JUDGMENT
STELZNER AJ
1. The applicant was employed as the Town Clerk of the first
respondent. His services were terminated on 27 August 1998 in
terms of a resolution by the first respondent. Applicant alleges
that the termination is irregular, setting out some eight different
grounds of review in his founding affidavit. He brought an
application to this court in terms of section 158(1)(h) of the
provisions of the Labour Relations Act No 66 of 1995 (“the Act”).
2. At the commencement of the proceedings I was alerted to a
decision of the Transkei High Court in which it was held that a
municipality or local authority is not to be regarded as the State
as an employer, but rather can sue and be sued in its own name
(see Mcosini v Mancotywa & another (1998) 19 ILJ 1413 (Tk)).
The parties themselves did not dispute the jurisdiction of this
court to hear the matter in terms of the provisions of section
158(1)(h) of the Act and that was also the view of Landman J in
SA Agricultural Plantation and Allied Workers Union v Premier of
the Eastern Cape & others (1997) 18 ILJ 1317 (LC). Based on the
reasoning as set out in the SAAPAWU judgment I am approaching
the matter on the basis that this court does have the requisite
jurisdiction.
Relevant chronological events
3. The applicant was employed by the first respondent in the
capacity of Town Clerk. His services were suspended on 21 April
1998, pending the holding of a disciplinary enquiry.
4. The disciplinary enquiry against the applicant was chaired
by the third respondent and proceeded on 4, 7, 8 and 21 May
1998. The third respondent is not employed by first respondent,
but was appointed as an independent third party to chair the
enquiry. The third respondent found the applicant guilty on some
23 charges and recommended to first respondent that he be
dismissed with effect from the end of July 1998.
5. On 29 June 1998 the first respondent resolved that the
findings of the third respondent against the applicant be upheld
and that the services of the applicant be terminated with
immediate effect.
6. The applicant was allowed to appeal against the decision of
the third respondent in terms of clause 10.2.1.8.14 of the
disciplinary procedure contained in the Standard Conditions of
Service, which were being applied by the first respondent at the
time. These Standard Conditions of Service were promulgated by
the then Minister of Manpower in terms of the provisions of
section 48(1)(a) of the Labour Relations Act of 1956 and
constituted an agreement concluded at the Industrial Council for
the Local Authority Undertaking of the Province of the Cape of
Good Hope. The Standard Conditions of Service were made
binding by the Minister for the period 13 May 1994 to 1
December 1996. It was common cause between the parties at
the hearing of the matter that, in the circumstances, the
Standard Conditions of Service were no longer applicable by
operation of the law at the times material to this dispute.
7. The Standard Conditions of Service make provision for
disciplinary enquiries to be chaired by a Disciplinary Committee
and appeals to be chaired by an Appeal Committee.
8. Clause 10.2.1.8.15.1 of the Standard Conditions of Service
provides for the following procedure where an employee notes an
appeal:
“The appeal of an employee shall be heard as a de novo
disciplinary enquiry by an appeal committee appointed by the
Council and having higher authority than the departmental head
concerned or his assignee or the disciplinary committee
concerned against whose finding and/or disciplinary measures
that appeal is being lodged: Provided that where the Council is
of the opinion that it is not necessary to hold a de novo enquiry
the Appeal Committee shall merely entertain
representations/arguments without a de novo enquiry: Provided
further that the employee concerned or his representative shall
have the right in terms of the Labour Relations Act, 1956, to
contest such decision and that the record of the previous enquiry
shall be made available to the Appeal Committee by agreement.”
9. It is common cause that the applicant appealed against the
decision of the first respondent and that the first respondent
resolved that a de novo hearing was not necessary. It is
apparent from the papers that applicant failed to approach the
first respondent as he was entitled to do in terms of the clause
quoted in full above in order to contest the first respondent’s
decision not to allow the appeal to proceed de novo.
10. The first respondent appointed the second respondent to
act as the appeal chairperson. The second respondent is also not
an employee of first respondent and was appointed as an
independent party to chair the appeal. At the commencement of
the appeal hearing the applicant was represented. Neither the
applicant nor his representative objected to the fact that the
hearing was not to be conducted de novo . In fact the record
shows that second respondent, at the start of the hearing,
confirmed the agreement of applicant’s representative to the
effect that the hearing would not be conducted de novo.
11. On 26 August 1998 second respondent produced his finding
in a written report and recommended that applicant’s dismissal
be confirmed. On 27 August 1998 the first respondent resolved
to accept the appeal findings of the second respondent.
The grounds of review
12. A number of the grounds of review relied upon by the
applicant arise from the alleged failure by the first respondent to
comply with various of the specific provisions of the Standard
Conditions of Service. For instance, clause 10 of the Standard
Conditions of Service makes provision that the enquiry would be
presided over by a committee, whereas it is common cause that
the third respondent acted as the sole presiding officer of the
disciplinary enquiry. In this regard applicant alleges that he has
been prejudiced by the fact that only one person acted as the
presiding officer which deprived him of the “benefit of multiple
deliberation and cross-advice”. The applicant raises the same
argument in respect of the second respondent being the sole
presiding officer of the appeal hearing. As far as the further
conduct of the appeal is concerned the applicant alleges that the
failure by the second respondent to conduct the appeal hearing
de novo was a violation of the provisions of clause 10.2.1.8.15.1
of the Standard Conditions of Service. Secondly, he alleges that
first respondent failed to afford applicant a hearing before
deciding that no de novo hearing would be held and, thirdly, he
complains that the record of the disciplinary hearing was made
available to the second respondent in the absence of an
agreement. All of these, he alleges, constitute gross
irregularities in the procedure.
13. I deal with the above grounds of review before proceeding to
deal with the further grounds. As I have already stated it is
common cause that the Standard Conditions of Service were no
longer in force at all material times pertinent to this dispute. Mr
Van Graan, who appeared on behalf of the first respondent,
submitted that in the circumstances the applicant could not
approach this matter in terms of the precepts of administrative
law. That submission is clearly correct. Instead, submitted Mr
Van Graan, the matter should be approached with reference to
the provisions of the Act. In particular, the conduct of the first
respondent in disciplining and dismissing the applicant should be
judged with reference to the provisions of Schedule 8 of the Act.
14. It is apparent that as a matter of fact the third respondent was
at the very least using the provisions of the Standard Conditions
of Service as a guideline in regard to the procedure followed by it
in disciplining the applicant. Upon expiry of the validity of the
Standard Conditions of Service and in the absence of the
introduction of an alternative disciplinary procedure and code
there seems no reason why the third respondent could not
continue as a matter of practice to apply the Standard Conditions
of Service as a guideline. Mr Van Graan submitted that the
provisions of the Standard Conditions of Service are
compatible/reconcilable with the provisions of Schedule 8 to the
Act in regard to the requirements for a fair disciplinary
procedure. Judged on that basis I agree that there does not
appear to be a valid challenge to the fairness of the procedure
followed by the first respondent.
15. I turn to consider the particular complaints of irregularity in
more detail. Although the Standard Conditions of Service refer to
a disciplinary and appeal enquiry being conducted by a
committee it would not appear that there was real prejudice to
the applicant by virtue of the fact that he appeared before a sole
presiding officer in both instances. Certainly within the ambit of
what is generally regarded as fair labour practice the
appointment of a single person to chair an enquiry is standard
practice. Moreover, in these instances, the fact that an
independent outside party was appointed (as was common
cause) would ensure impartiality in the proceedings. Although
the decision to dismiss applicant (and to confirm his dismissal on
appeal) were finally made by adoption of resolutions to this effect
by first respondent, the terms of the resolutions were simply to
adopt the recommendations of third and second respondent
respectively. In the circumstances I do not think that first
respondent can be said to have acted as iudex in sua causa as
argued by the applicant.
16. As far as the alleged irregularities in regard to the fact that
the appeal hearing was not conducted as a de novo hearing are
concerned, I am satisfied that in terms of the provisions of clause
10.2.1.8.15.1 of the Standard Conditions of Service first
respondent was entitled to form the view that it was not
necessary to hold a de novo enquiry. What the wording of the
section does is provide the employee with the right to contest
that decision once it has been taken. It was common cause that
the applicant as a matter of fact did not contest the decision.
Moreover, I am satisfied on the papers before me that the issue
was pertinently raised at the commencement of the appeal and
that applicant’s representative agreed to proceed on the basis
that the appeal would not be a de novo hearing. In that context
any rights which the applicant might have had were clearly
waived. In those circumstances it was not inappropriate, also,
that the record of the disciplinary enquiry was made available to
the appeal chairperson.
17. I am satisfied thus in all respects that the procedure followed
by the first respondent was fair. I have already dealt with the
fact that any failure to comply with the strict terms of the
Standard Conditions of Service cannot constitute a ground for
review under general administrative law provisions given the fact
that those conditions of service were no longer in force.
18. That leaves me to deal with the allegation that there has not
been compliance with the provisions of section 67(2) of the
Municipal Ordinance No 20. of 1974. Mr Van Graan conceded
that the provisions of this Ordinance are still operative having
been assigned to the Province of the Northern Cape by the
President under the provisions of section 235(8) of the
Constitution of the Republic of South Africa, by way of
Government Notice 108 of 1994.
19. Section 67(2) of the Ordinance reads as follows:
“No Council shall terminate the services of its Town Clerk,
whether upon or without notice, except with the approval of the
Administrator who, before granting such approval, may, and, if
he is so requested in writing by the Town Clerk in any case where
an enquiry in terms of section 69 has not been held, shall act in
terms of section 200 and cause an investigation to be
undertaken into the circumstances surrounding the proposed
termination of the services of the Town Clerk.”
Applicant’s complaint related to the fact that the approval of the
Premier (which in the present context should be substituted for
the reference to a referral the Administrator) had not been
obtained. The Premier is the fourth respondent in these
proceedings.
20. Mr Van Graan submitted that the contents of section 67(2) of
the Ordinance are in conflict with the provisions of the present
Labour Relations Act which “authorises” an employer to dismiss
its own employees. There is no dispute in this matter that the
first respondent was the applicant’s employer. In that regard he
argued further that there is a distinction to be drawn between
original and provincial / subordinate legislation. Because the
Ordinance concerned is subordinate legislation it should yield to
the provisions of the Labour Relations Act in the event of a
conflict. (See LAWSA Volume 25 p186 para 261). Furthermore,
he submitted, the provisions of section 148 of the Constitution of
the Republic of South Africa are applicable, which section
provides that in the case of a conflict the national legislation
prevails over the provincial.
21. I accept that the Labour Relations Act authorises an employer
to dismiss its own employees, at the very least by implication.
Indeed, one can probably go further and infer that the Act
requires that an employer itself take the decision to dismiss one
of its employees in that if the employer did not itself take the
decision it is likely that the decision to dismiss would be found to
be unfair under the provisions of the Act. In that sense there is
clearly a conflict between the provisions of the Act and those of
the Ordinance and it was not necessary, therefore, for the first
respondent to approach the fourth respondent for approval
before dismissing the applicant.
22. Mr Van Graan argued in the alternative that, in any event,
section 67(2) of the Ordinance had been complied with. He
argued this with reference to a letter directed to the MEC of the
North West Province in which first respondent advised the MEC of
the findings against the applicant and the decision of first
respondent to terminate his services. The letter concludes with
the following words: “ We hope you will find this in order ”. The
MEC then writes back as follows:
“I must confirm that your Council as a Municipality and therefore
an independent sphere of government in terms of the
Constitution of the Republic of South Africa, 1996 (Act No 108 of
1996), has the power, in its own right, to investigate the actions
of its officials and may, in accordance with applicable Labour
Law, act against any Council official, including the CEO. In such
matters the Municipality acts independently without any
“endorsement” from any other person or public authority.
I, as the responsible MEC, can only confirm a note that your
Council is authorised by law to terminate the services of your
CEO as set out in your abovementioned letter.”
The position taken by the MEC in the aforesaid letter is an
endorsement of the conclusion that it is not in fact necessary to
obtain approval for the dismissal of a Town Clerk. As far as the
issue of whether or not the letter indeed constitutes approval as
contemplated by the provisions of the Ordinance is concerned, in
the light of the conclusion which I have reached above I am not
required to decide that aspect of the matter. In the papers first
respondent avers that the MEC was the authorised representative
of the fourth respondent. This is placed in dispute by the
applicant as a matter of fact and law, the averment being that
there is no evidence before me to show either that the fourth
respondent could delegate that function to the MEC or that such
delegation as a matter of fact occurred. This is not a dispute
which I can resolve on the papers. If the delegation point were
resolved, however, I would be satisfied that the wording of the
letter of the MEC is sufficient to constitute “approval” as
contemplated by section 67(2) of the Ordinance. If I am wrong
on the point of whether the approval of fourth respondent is
required or not, therefore, I am of the view that this aspect of the
matter would have to be referred to oral evidence for resolution
of the dispute of fact.
23. The applicant seems to raise what could be construed as a
separate ground of review in relation to the provisions of s 67(2)
of the Ordinance, namely, the failure by fourth respondent to
afford him a hearing before deciding whether or not to approve
his dismissal. He alleges that he had a legitimate expectation
that there would be compliance with the rules of natural justice in
this regard. I have already found that the approval of fourth
respondent was not required and it follows therefore that this
ground of review also falls to be dismissed.
24. There were certain additional grounds for review raised which
remain to be dealt with. When second respondent confirmed the
applicant’s dismissal on appeal he made a further
recommendation that in the event of any further legal action
favouring the applicant at any level he not be reinstated but that
a retrenchment package be negotiated with him. The first
respondent adopted this recommendation in a formal resolution.
In the event, however, the resolution was not carried out as no
further legal action to date has resulted in applicant’s
reinstatement. It was argued on behalf of the applicant that the
adoption of this resolution was grossly unfair and unreasonable
since at the time of its adoption first respondent had not
complied with the provisions of section 189 of the Act. The
applicant was, however, dismissed on the grounds of misconduct
and the issue of retrenchment has as a matter of fact not entered
into the picture. If at some future stage the applicant were to be
reinstated and first respondent were to then consider
retrenchment as an alternative it would be at that stage that the
provisions of s 189 would become applicable. The applicant
cannot now seek relief on the basis of an anticipated breach by
the first respondent which may or may not arise at some stage in
the future.
25. The applicant alleged further that the various acts performed
by first, second and third respondents were irregular as they
were performed in terms of the Standard Conditions of Service
which had expired on 1 December 1996. I have already to a
certain extent dealt with this aspect in addressing the specific
complaints regarding procedure. The fact that first respondent
purported to follow the terms of the Standard Conditions of
Service as a guideline, in the absence of some other procedure
which it was bound in law to follow, does not render its actions
irregular or reviewable, particularly where the procedure adopted
was legitimate and fair when viewed against the requirements of
fair labour practice contained in the Act.
26. Finally the applicant complains that first respondent failed to
obtain an exemption from the Industrial Council (as it was at the
time) as required by the provisions of section 1(3) of the
Standard Conditions of Service, to permit departure from the
terms of those Conditions of Service. On his own case, however,
the Standard Conditions of Service were no longer in operation at
all material times to this dispute. The requirement having
become obsolete failure to comply therewith can have no effect
on the validity of the applicant’s dismissal.
27. Both parties were ad idem that this is a matter in which costs
should follow the result.
28. In the circumstances I make the following order:
28.1 The application in terms of section 158(1)(h) is dismissed.
28.2 Applicant is to pay first respondent’s costs, such costs to
exclude any costs associated with the transcripts of the
disciplinary enquiry and the appeal hearing which were filed
separately from the record and which were not necessary for the
determination of this matter.
S STELZNER
Acting Judge of the Labour Court of South Africa
DATE OF HEARING: 13 August 1999
DATE OF JUDGMENT: 23 August 1999
APPEARANCE FOR
APPLICANT:
Mr N Cloete
OF: Neville Cloete & Company
Attorneys
APPEARANCE FOR
RESPONDENTS:
Mr E Van Graan
INSTRUCTED BY: