2
precautionary suspension. I held that the resolution was taken in breach of
section 1 (c) of the Constitution, 1996, because the municipality had failed to
seek representations on whether any of the jurisdictional requirements set out
in Regulation 6 (1) of the Local Government: Disciplinary Regulations for
Senior Managers, 2011 had been established. I found that Regulation 6 (2)
confers the right to make such representations upon Mr. Mathe.
2 The mainstay of the appeal the municipality proposes is that I was wrong to
read Regulation 6 (2) in this way. The municipality contends that it need not
have set out the basis on which it believed the requirements of Regulation 6
(1) had been met in order to allow Mr. Mathe to make meaningful
representations in relation to his proposed suspension.
3 This argument is plainly untenable. Regulation 6 (2) affords Mr. Mathe the
right to make “a written representation to the municipal council [on] why he . . .
should not be suspended”. Mr. Mathe may only be suspended if one of
Regulation 6 (1) requirements is met. Mr. Mathe is entitled to know, in order
to make his representations, which of those requirements has, in the
municipality’s view, been met, as well as the factual basis on which it is
asserted they have been met. The municipality never set that out – either to
Mr. Mathe or to me. Without that information, Mr. Mathe’s Regulation 6 (2)
rights are hollow.
4 This is also how the municipal council itself understood the purpose of Mr.
Mathe’s representations. In its resolution to suspend him, the council criticised
Mr. Mathe on the basis that he “fail[ed] to respond to the allegations brought
against him as to why he should not be placed on precautionary suspension”.
3
The municipality cannot now be heard to argue that the absence its own
council identified in Mr. Mathe’s representations – the very absence that
formed a material part of the basis on which it suspended him – never really
mattered after all.
5 It was also contended that I failed to align my judgment with what the
municipality calls “the broader body of South African labour and administrative
law”. I cannot see what could be meant by that, other than that I concluded
that the decision in Long v South African Breweries (Pty) Ltd (2019) 40 ILJ
965 (CC) is of no application to this case. My reasons for saying so were set
out in my judgment a quo. There is, in my view, no prospect of a court of
appeal deciding otherwise.
6 It was finally suggested that my judgment “paralyses municipal councils from
swiftly moving to protect municipal assets, public funds, and administrative
integrity following allegations of senior executive misconduct”. My judgment
does no such thing. Nobody has been “paralysed”. All that is required, before
giving notice of a possible precautionary suspension to one of its senior
managers, is that a municipality applies its mind to the bases on which the
Regulation 6 (1) requirements have met, and that it communicates its views
to the senior manager concerned.
7 In this case, all the municipality need do is reformulate its notice of suspension
to advert to the Regulation 6 (1) grounds which it believes justify Mr. Mathe’s
suspension. If it can do that, the municipality may proceed against Mr. Mathe