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THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
CASE NO: D85/23
In the matter between:
TEBOGO MANELE Applicant
And
MEMBER OF THE EXECUTIVE COUNCIL
COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS, FREE STATE
PROVINCE First Respondent
TSHEPISO RAMAKARANE Second Respondent
Heard: 1-24 October 2024, 10-11 November 2025 and 3 December 2025.
Delivered: This judgment was handed down electronically by circulation to
the parties’ Legal Representatives by email, publication on the Labour Court
(1) Reportable: NO
(2) Of interest to other Judges: Yes
Signature Date
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website and release to SAFLII. The date and time for handing - down is
deemed to be 15h30 on 28 July 2026.
___________________________________________________________________
JUDGMENT
LALLIE J
[1] The doctrine of separation of powers requires that each arm of government,
namely, the legislature, executive and the ju diciary exercise only the power
vested in it and guard against enchroaching on the authority of others . Its
main purpose is the promotion of accountability and good governance. In
provincial government state power is exercised mainly through heads of
provincial government departments and public administration. The doctrine of
separation of powers is applicable in all spheres of government . The
institution of these proceedings stems from the exercise of power by a
Member of Executive Council for Cooperative Governance and Traditional
Affairs.
[2] The plaintiff is Mr Manele (Manele). He is employed as the Office Manager of
the Member of the Executive Council (MEC) for the Department of Agriculture
in the Free State Province. On 11 February 2020 while the plaintiff was the
Office Manager to the MEC for Cooperative Governance and Traditional
Affairs (COGTA) in the Free State Province, the Provincial Executive Council
of the Free State (the EXCO) passed a resolution to intervene at Metsimaholo
Local Municipality (the M unicipality) in terms of section 139(1)(b) of the
Constitution of the Republic of South Africa, 1996 (the Constitution). On 12
February 2020, Mr Nxangisa (Nxangisa) who was the MEC for COGTA at the
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time appointed the plaintiff as an administrator of the Metsimaholo
Municipality in terms of section 139(1)(b) of the Constitution. The appointment
was at the level of a Chief Director. As the plaintiff was the Office Manager of
Nxangisa’s office at the time, the latter seconded him in terms section 15 of
the Public Service Act of 1994 (the PSA) to serve as the municipality’s
administrator.
[3] On 19 June 2020 the EXCO passed a resolution approving the payment of a
secondment allowance to fulltime EXCO representatives and assistant EXCO
representatives with effect from the date of their secondment. The plaintiff
received the allowance in the mount of R50 000,00 per month for a period of 7
months. On 10 February 2021 the intervention at Metsimaholo Municipality in
terms of section 139(1)(b) of the Constitution was extended by a period of 8
months and on 29 October 2021 the Head of the Department terminated the
plaintiff’s appointment as an administrator.
[4] It is the plaintiff’s case that when he took up the position as an administrator
at Met simaholo Municipality h e continued being remunerated at the rate of
Director level 13 instead of being remunerated at the rate of a Chief Director
at level 14 in line with his appointment letter and the remuneration rate of
other admi nistrators. The plaintiff alleged that the first defendant acted in
breach of the agreement they reached on 12 February 2020. In these
proceedings he seeks an order directing the first defendant to pay him an
amount of R187 856, 75, the salary difference between level 13 and level 14
remuneration rate for the period 20 February 2020 to 31 October 2021 and his
remaining secondment allowance in the amount of R650 000.00.
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[5] The defendants opposed the plaintiff’s claim on the grounds that the amounts
which form the basis of his claim are not legally due to him. In substanti ating
his claim that he is entitled to the payment of the amount of R187 856,75
which constitutes the salary difference between salary level 13 and 14 for the
period between 20 February 2020 and 31 October 2021 the plaintiff relied on
the letter he received f rom Nxangisa dated 12 February 2020 which, in his
view, constituted a contract of employment. The salient parts of the letter read
as follows:
“APPOINTMENT AS ADMINISTRATOR: METSIMAHOLO LOCAL
MUNCIPALITY
1. This letter serves to confirm your appointment as the Administrator at
Metsimaholo Local Municipality. This is in line with the resolution of the
Provincial Executive Council of Free State (“Executive Council”) dated 11
February 2020, wherein the Executive Council resolved to intervene at
Metsimaholo Local Municipality in terms of section 139(1)(b) of the
Constitution. The MEC has elected to appoint you as the Administrator.
2. The date of your appointment is effective form 20 February 2020 for a
period of 12 months, subject to further written extensions or termination of
the intervention in which case the Department reserves the right to
provide you with seven written days’ notice.
Location Bloemfontein/Sasolburg
Rank Chief Director”
[6] The defe ndants denied that the letter is a contract of se condment. They
submitted that the letter is an instruction for the plaintiff to exercise the powers
and perform the duties listed in it at the rank of Chief Director.
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[7] The essential question to be answered in determining whether the plaintiff is
entitled to the portion of the salary he should allegedly have earned when
appointed as an administrator at Metsimaholo Municipality is whether
Nxangisa, in his capacity as the Member of the Executive Council (MEC) for
COGTA, had the authority to second the plaintiff and raise his rank and
consequently his salary to that of a Chief Director . The plaintiff relied on
Nxangisa’s letter appointing him as the administrator of Metsimaholo
Municipality, documentary evidence and oral evidence of witnesses who
supported his version in submitting that he was entitled to be remunerated at
the level of Chief Director during his secondment . He drew attention to
paragraph 4 of his letter of appointment which reads as follows:
“4. Your appointment is hereby, formalised and confirmed and any other
formalities or lack thereof, in respect of contractual obligations, do not
affect the validity of this appointment.”
[8] The defendants argued that the executive authority’s failure to comply with the
relevant prescripts in effecting the seconment was fatal to the plaintiff’s claim.
They relied on regulation 57(1)(d) of the Public Service Regulations of 2016
which provides that an executive authority shall ensure that each person upon
appointment is provided with written particulars of employment including the
terms and conditions of his or her service. They also relied on regulation 87
and 12A. All the regulations regulate employment of individuals in the civil
service. They submitted that in seconding the plaintiff to the Municipality
Nxangisa acted in breach of section 15 of the PSA.
[9] The first defendant ’s evidence was that the letter of appointment did not
constitute valid secondment of the plaintiff because it was not a written
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contract and failed to comply with the prescripts that regulate secondment of
public servants. The first defendant relied on the provisions of section 9 of the
PSA which enjoins the executive a uthority to make appointments in his or her
department in accordance with the PSA and in such a manner and on such
conditions as may be prescribed.
[10] Section 15(2) and (4) of the PSA grant the executing authority powers to
second employees in the following words:
“15(2) A person in the service of a department under any law other than this
Act, or in the service of another government, or of any council, institut ion or
body established by or under any law, or of any other body or person, may be
employed by another department or a department, as the case may be, for a
particular service or for a stated period and on such terms and conditions,
other than conditions laid down by or under any pensions law, as may be
agreed upon by the employer of t he person concerned and the relevant
executing authority and approved by the Treasury.
(4)(a) A person (in this paragraph referred to as the official) in the service of a
department under any law other than this Act, or in the service of another
government, or of any council, institution or body established by or under any
law, or of any other body or person, may be employed by another department
or a department, as the case may be, for a stated period and on such terms
and conditions, other than conditions laid down by or under any pensions law,
as may be agreed upon by the employer of the official and the relevant
executing authority and approved by the Treas ury and in such a case, on
such conditions, in addition to those prescribed by or under any law, as may
be determined by the said authority after consultation with the Treasury , an
officer or employee may with his or her consent and in terms of such an
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agreement be placed at the disposal of the employer of the official for the
same period on an exchange basis.”
[11] The defendants submitted that Nxangisa’s failure to act in consultation with
the treasury in effecting the plaintiff’s secondment was in breach of section 15
of the PSA and rendered the secondment invalid. They relied on Ndaba v
Department of Communications where the following was held1:
“[19] In Khanyile v Minister of Education and Culture, Kwazulu- Natal and
Another, the court decided that an appointment into the Public Service was
null and void, as it had not been in compliance with the PSA or its regulations
and was thus ultra vires the statute. Khanyile’s case was that he had been
appointed in the ordinary course to full time employment in the Public Service.
The court found that the appointment into the SMS had been flawed in at
least three major aspects - first, the post was not advertised; secondly, the
proper selection procedures were not followed and thirdly, no contract of
service, nor a performance agreement were concluded.”
[12] I accept the first defendant’s contention that the plaintiff’s letter of secondment
to be an administrator at Metsimaholo is not a contract of appointment to the
position. Secondment of government employees is governed by section 15 of
the PSA. It is further regulated by regulation 62 of the Public Service
Regulations. Nxangisa did not disclose the source of his authority to
unilaterally second the plaintiff and to do so at the rank of Chief Director when
he was employed at the MEC’s office as a Director at level 13 salary. Chief
Directors are remunerated at salary level 14.
1(JS925/2010) [2012] ZALCJHB 41 (11 May 2012) at para [19].
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[13] The defendants submitted that the plaintiff’s letter of secondment was an
instruction for him to exercise the powers and perform the duties listed in the
letter at the rank of Chief Director. Nxangisa attempted to cure his omission to
follow all the formal requirements in effecting the secondment by stating the
following in paragraph 4 in the appointment letter:
“4. Your appointment is hereby, formalised and confirmed and any other
formalities or lack thereof, in respect of contractual obligations, do not
affect the validity of this appointment.”
[14] The wording of section 15(4) presupposes that the requirement that a contract
of secondment must be in writing has been complied with. The contract is an
agreement on the duration and terms and conditions of the secondment with
the approval of Treasury. The Treasury needs to apply its mind to the relevant
information before granting its approval. It can practically perform that
responsibility when the agreement is reduced to writing . Section 15(4) further
provides that an officer may be seconded after consultation between the
executing authority and the Treasur y. The role of the Treasury in seconding
an employee is material and significant. In the context of retrenchments
consultation is defined in section 189(2) of the Labour Relations Act 2 (the
LRA) as an engagement ‘ in a meaningful joint consensus -seeking process and
attempt to reach consensus’ . The participation of the Treasury in the
secondment of an employee is vital. Nxangisa’s decision to second the
plaintiff a t a higher rank and salary supports the need for the Treasury’s
participation in the process of secondment as it is directly affected by the
increase in the plaintiff’s salary.
2 Act 66 of 1995, as amended.
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[15] Nxangisa’s attempt to usurp the function of the Treasury cannot succeed. A
secondment of a government official does not become valid because he stays
so. He did not have the authority to declare the required formalities
unnecessary or to condone his non-compliance with them. He was required to
effect the plaintiff’s secondment in terms of the law in exercising his powers .
The plaintiff did not prove the validity of his secondment. He conceded that
Nxangisa failed to fulfil all the requirements which would have rendered his
secondment valid. The plaintiff’s entitlement to the remuneration he is
claiming in these proceedings depends on the existence of the contract on
which his claim is based. He failed to present the contract . I must, in the
circumstances accept the defendant’s version that there was no contract.
[16] Based on the decision in Ndaba (supra) I find that Nxangisa’s failure to obtain
the Treasury’s consent and to effect the plaintiff’s secondment in terms of the
PSA and its regulations rendered the secondment invalid. The letter of
appointment which placed the plaintiff at the rank of Chief Director is
simulated as its purpose was to raise his salary irregularly during the period of
his secondment. I have considered the plaintiff’s submissions that other
administrators at Metsimaholo Municipality were remunerated at the rate of
Chief Director and that remunerating him less was unfair and discriminatory.
The plaintiff did not disclose the circumstances surrounding the appointment
of the other directors. As his case was based on contract he had to discharge
the onus of proof that the amount he is claiming was due to him in terms of his
contract of secondment. He did not discharge the onus of proof. His claim
cannot succeed.
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[17] The plaintiff’s claim that he is entitled to a secondment allowance in the
amount of R650 000.00 is based on a resolution the EXCO passed on 19
June 2020 whose salient provisions are the following:
“1. Determination of Allowance for Administrators and EXCO
Representatives
1.1 Approves the payment of secondment allowance for fulltime EXCO
Representatives and Assistant EXCO Representatives;
1.2 The secondment allowance be determined and paid by COGTA and
the amount to vary between R30 000.00 and R50 000.00 per month
depending on the size of the municipality and nature and the extent of
the assigned responsibilities;
1.3 That the allowance be paid to the EXCO Representatives and
Assistant EXCO Representatives effective from their date of
secondment;
1.4 Treasury allocates a budget to COGTA to fund the payment of
secondment allowance.’
[18] The plaintiff testified that he received the secondment allowance in the
monthly amount of R50 000.00 for a period of 7 months between 20 February
2020 and 31 October 2021. He stated that the first defendant refused to pay
him the remaining portion of his secondment allowance in the amount of
R650 000.00. It is common cause that payment of the secondment allowance
was effected by using allowance code 0204 on the government PERSAL
payment system. In October 2020 the Department of Public Service
Administration (DPSA) issued a notice of the de- activation of co mpensation
allowance code 0204 with effect from 1 December 2020. The last date of
payment of allowances in terms of the code was 31 January 2021. On 1
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December 2020 the first defendant’s Mr Duma (Duma) addressed a letter to
the DPSA requesting approval to create a code for the unique circumstances
of interventions in terms of section 139(1)(b) of the Constitution at various
municipalities in the Free State Province. In a letter dated 24 April 2021 the
Director General (DG) of the DPSA Ms Makhasi (Makhasi) declined the
request.
[19] On 17 June 2021 the EXCO passed a resolution to terminate the intervention
in terms of section 139(1)(b) of the Constitution at Metsimaholo Municipality
with immediate effect. On 22 June 2021 Nxangisa addressed a letter to the
Metsimmaholo Municipality advising it of the EXCO resolution of 17 June
2021. He added that notwithstanding the resolution , the first defendant would
continue rendering support to the municipality as contemplated in section 154
of the Constitution. In a letter dated 29 October 2021 Duma instructed the
plaintiff to return the motor vehicle that had been allocated to him as he was
no longer providing the service of assisting the municipality under
intervention.
[20] When the EXCO resolved, on 19 June 2020 t o approve payment of the
secondment allowance to its fulltime representatives at M etsimaholo
Municipality the plaintiff was one of the representatives . He was therefore
entitled to the payment of a monthly R50 000.00 secondment allowance with
effect form 12 February 2020, the date of his secondment. When the DPSA
de-activated code 0240 that was used to pay the secondment allowance with
effect from 1 December 2020 and refused the first defendant’s reques t for a
payment code in order to continue paying the secondment allowance, the
basis for its payment fell away. As an EXCO representative at the municipality
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the plaintiff was entitled to the secondment allowance form 12 February 2020
to 31 January 2021.
[21] The plaintiff provided no legal basis for his entitlement to the secondment
allowance beyond the de-activation of payment code 0240. He presented no
evidence proving that Nxangisa’s power to invoke the provisions of section
154 of the Constitution and extend the rendering of support to the
Metsimaholo Municipality included authority to order that he be paid the
secondment allowance. His evidence that he continued rendering service at
the municipality after the termination of the intervention in terms of section
139(1)(b) of the Constitution cannot assist him as it does not prove his
entitlement to the secondment allowance. In the absence of the legal basis for
his entitlement to the secondment allowance beyond 31 January 2021, the
plaintiff did not prove that payment of the secondment allowance beyond 31
January 2021 was due to him. The plaintiff conc eded that he received the
secondment allowance for a period of 7 months. The second ment allowance
he did not receive is, in the circumstances, for 3½ months.
[22] Ms Makhasi the Director General of the Department of Public Service and
Administration made it clear to Duma that the reason for the payment o f the
R50 000,00 monthly allowance the EXCO authorised fell outside its powers. It
was therefore unlawful. It is the Minister of Public Service and Administration
who has the authority to est ablish norms and standards relating to conditions
of service and other employment practices for government employees. His
office, through Makhasi informed Duma that payment of the R50 000, 00
allowance was unlawful as the EXCO exceeded its powers in approving it.
The plaintiff led no evidence to prove that the unpaid allowance was legally
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due to him. In the absence of such evidence his claim for the unpaid
allowance cannot succeed. The failure to communicate Makhasi’s response to
the plaintiff is of no moment.
[23] Nxangisa was enjoined to effect the plaintiff’s secondment in terms of the law
including the PSA. He also had to act within his powers. In the letter of
appointment, he stated that the location to which the plaintiff was appointed
was Bloemfontein/ Sasolburg. The plaintiff and Nxangisa testified that the
location meant that the former would render service at M etsimaholo
Municipality and continue performing his duties at Nxangisa’s office and that
he indeed worked a t both locations. During his secondment the plaintiff
received his monthly salary as a manager at Nx angisa’s office which included
a car allowance of R 7652,00 and a role playing allowance in the amount of
R6635,00. The plaintiff testified under cross-examination that the role playing
allowance was created to cover overtime as the MEC’s office called him to
perform his duties anytime.
[24] Nxangisa conceded that he addressed a letter to the Minister of Public
Service and Administration on 5 March 2021 requesting permission to pay an
acting allowance to an official who was going to act in the plaintiff’s position.
In that letter he confirmed that the plaintiff was seconded in terms of section
15 of the PSA as a result of the EXCO’s decision to put the Metsimaholo
Municipality under administration in terms of section 139(1)(b) of the
Constitution. He added that as a result of the secondment no one was
performing his function of Head of the MEC’s office. A further material fact
Nxangisa stated in t he letter was that as a result of the plaintiff’s secondment
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the COGTA department had decided to appoint an official in the office of the
MEC as acting head of office for the duration of the plaintiff’s secondment.
[25] It must be noted that the letter of 5 March 2021 was written before 17 June
2021 the date on which the EXCO resolved to terminate the intervention in
terms of section 139(1)(b) of the Constitution at Metsimaholo Municipality . It is
inconsistent with the plaintiff’s evidence which Nxangisa attempted to
corroborate that the plaintiff continued to perform his duties as the head of his
office while on secondment at Metsimaholo Municipality. The plaintiff also
received the allowance that was intended for full time representatives at
Metsimaholo Municipality because he was one.
[26] The plaintiff failed to prove the existence of a contract which entitled him to
the amounts of money he is claiming in these proceedings. He therefore did
not make out a case for the relief he seeks. His claim s are therefore
dismissed.
[27] The first defendant sought a costs order against the plaintiff. Evidence
revealed that Nxangisa who even testified in favour of the plaintiff convinced
the plaintiff that he was ent itled to the money he is claiming in these
proceedings. The plaintiff’s evidence that he was never given reasons for the
non-payment of the outstanding secondment allowance was unchallenged.
Justice requires that the plaintiff, as the unsuccessful party, should not be
mulcted with a costs order for being unsuccessful in litigation which was
triggered by the first defendant ’s misinformation and failure to provide him
with material information.
[28] In the premises, the following order is made:
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1. The plaintiff’s claims are dismissed.
2. Each party to pay its own costs.
MZN Lallie
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Mr M.J Ponoane of Ponoane Attorneys
For the Respondents: Advocate A.I.B Lechwano
Instructed by the State Attorney