City of Tshwane Metropolitan Municipality and Another v Matlala and Another (JR1836/22) [2024] ZALCJHB 374 (18 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Not Reportable

case no: JR1836/2022

In the matter between:

CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Applicant MUNICIPAL MANAGER: CITY OF TSHWANE METROPOLITAN MUNICIPALITY Second Applicant and MABUSHA SUNNY MATLALA First Respondent DANNY MINAAR N.O. Second Respondent

Heard: 25 April 2024

Delivered: [ 18 September 2024 ]

This judgment was handed down electronically by emailing a copy to the parties. The date of [18 September 2024 ] is deemed to be the date of delivery of this judgment.

JUDGMENT

MARTIN AJ

INTRODUCTION

[1] This is a review in terms of section 158(1)(h) of the Labour Relations Act 66, of 1995 (“the LRA”). The applicants seek to review and set aside a disciplinary enquiry outcome issued by the second respondent on 25 March 2022, and in which he dismissed a disciplinary charge against the first respondent.

[2] It is common cause that the parties are subject to a Disciplinary Procedure Collective Agreement (“the Disciplinary Procedure”) which was concluded in accordance with the LRA and entered into between the South African Local Government Association, the Independent Municipal and Allied Trade Union and the South African Municipal Workers’ Union.

[3] On 21 March 2020 the first respondent was charged with the following (all emphasis appears in the quoted document):

“Allegations against yourself are persuaded [sic] in terms of the Collective Agreement: Disciplinary Procedure, which came into effect on 01 February 2018 DETAILS OF CHARGES:

Charge 1

You have contravened Clause 1.2.4 Code of Conduct [sic] which reads as follows: “Employees are expected to obey all lawful and reasonable instructions given by person [sic] having the authority to do so” in that on or about 14 December 2019 you have refused or failed to attend to a Code 065 with reference A912/00728 which is full resuscitation emergency call.”

[4] The charge sheet was signed by Mr Livingstone Mabalanganye (“Mabalanganye”) who is employed by the City as a Labour Relations Manager. Mabalanganye also prosecuted the enquiry.

[5] The charge sheet provided that the enquiry would proceed on 14 May 2020 before one Mr Brian Ceylon sitting as the presiding officer. It appears from paragraph 4 of the second respondent’s ruling that the enquiry was convened before an earlier chairperson who is not identified (but who I assume was Mr Ceylon), and that it was then postponed. It also appears from the ruling that at the initial sitting of the enquiry the then chairperson was required to rule on various points in limine raised by the first respondent.

[6] For reasons unknown on 23 October 2021 the second respondent, who is an Acting City Manager, was appointed as the chairperson to preside over the remainder of the disciplinary enquiry. The enquiry was finally convened and heard on 14 March 2022. The first respondent again raised several points in limine. The second respondent upheld one of them and dismissed the charges against the first respondent.

[7] The applicants contend that in making this ruling the second respondent committed a gross irregularity in failing to properly apply his mind to the Disciplinary Procedure, and to the facts before him. The first respondent on the other hand contends that the ruling was one that a reasonable decision-maker would make.

[8] The first respondent also raised a preliminary point in this Court, which was raised on the day of the hearing without advance notice to the applicants and to the Court. I deal with the belated point below.

THE ENQUIRY

[9] At the hearing of 14 March 2022, the first respondent raised several points in limine. From the second respondent’s ruling it seems that so many preliminary issues were raised that only certain of them were

formally recorded by the second respondent.[1]

[10] Firstly, it was contended that Mabalanganye was “not duly appointed in terms of clause 7.7.1 of the disciplinary procedure Collective Agreement”. Clause 7.7.1 reads as follows (with emphasis):

“7.7.1 The Municipal Manager or his authorised representative shall appoint, in the first instance, a suitably qualified person employed by the Municipality, preferably one level or two above the Employee’s position, to serve as Employer representatives.”

[11] The first respondent complained that Mabalanganye was “four or five levels” higher than the position of the first respondent and therefore his appointment was irregular.

[12] Secondly, it was asserted that the second respondent was not duly appointed in terms of clause 7.6.1 of the Collective Agreement. The relevant clause reads as follows (with emphasis):

“7.6.1 The Municipal Manager or his authorised representative shall appoint, in the first instance, a suitably qualified person employed by the Municipality, preferably one level or two above the Employee’s position, to serve as the Presiding Officer.”

[13] The second respondent, the first respondent complained, was also more than two levels higher than the position of the first respondent and therefore he was ineligible to sit as a chairperson in the enquiry.

[14] It will be noted that the language of clauses 7.6.1 and 7.7.1 is identical, save that the former clause refers to an “employer representative” and the latter clause refers to a “presiding officer”.

[15] Finally, the first respondent complained that Mabalanganye should have formulated and served the charges within 5 days of his appointment in terms of clause 7.8 of the Collective Agreement, which states that:

“The Employer Representative shall, within five (5) days of his appointment, formulate and serve the charges to be brought against

the Employee.”

IS THE RULING ONE THAT A REASONABLE DECISION MAKER COULD HAVE MADE?

[16] On 25 March 2022, the second respondent handed down his ruling. I am afraid that it is rather incomprehensible, and with the most willing of minds a reader is hard-pressed to discern the parameters of the second respondent’s findings, and the reasons for his ruling.

[17] At paragraphs 4(A) and 4(B) the second respondent summarises the parties’ submissions on the points in limine. He does not examine or analyse the parties’ submissions or consider their merits in these paragraphs (or anywhere else in the ruling).

[18] The second respondent then goes on at paragraph 5.1 to make the following finding (with emphasis added):

“5.1 It is clear from the above[2] that the prosecutor was not duly or properly appointed in terms of clause 7.7.1 of the disciplinary procedure Collective Agreement although he is a “suitable qualified person employed by the Municipality”.”

[19] This paragraph suggests that the second respondent agrees with the point in limine that Mabalanganye’s position at more than two levels above the first respondent’s position makes him ineligible to act as a prosecutor, despite being qualified to so act.

[20] At paragraph 5.3, however, the second respondent, in a paragraph that seems to start halfway through a thought, makes the following findings (again with emphasis):

“5.2 “preferably one level or two above the Employee’s position”. Refers to a choice that the Municipal Manager or his representative do have and does not indicate must. This notion by the defence is dismissed.”

[21] This paragraph suggests that the second respondent agrees with the City that clause 7.7.1 contemplates a mere preference that a prosecutor be no more than one or two levels above the position of the accused employee and that Mabalanganye was properly appointed.

[22] At paragraphs 5.3 to 5.5 the second respondent makes the following findings in relation to the other points in limine:

“5.3 I find that charges were duly drafted and served within the allowed timeframe as per dates indicated by the prosecutor. If the appointment letter of the prosecutor were available, this could have had an impact. We need to understand that the past two years it was difficult to deal with various matters due to COVID as was also raised by the prosecutor and defence.

5.4 The answer to this point, is as per 5.2 above

5.5 The defence did not adhere to timelines for appeal (5.2 “Peremptory” in terms of their submission 4.A.5”. In terms of the Collective Agreement, however my submission in terms of COVID in terms of “5.3” above remains. The prosecution must also take note of their own challenges that contributed to set dates for this hearing.”

[23] The second respondent does not address the challenge to his own eligibility to chair the enquiry, despite the language of clause 7.6.1 of the Disciplinary Procedure being identical to the language of clause 7.7.1, save that the former refers to the appointment of the chairperson and the latter refers to the appointment of the prosecutor.

[24] Despite the contradictory findings in paragraphs 5.1 and 5.2, at paragraph 6 the second respondent upholds the point in limine against Mabalanganye’s eligibility to prosecute as follows:

“… this matter is dismissed due to the non-appointment of the prosecutor in terms of cause [sic] 7.7.1 of the main collective agreement.”

[25] Before going further it is helpful to consider the points in limine at a conceptual level, with a particular focus on their theoretical outcomes assuming that they were well-brought and successfully taken. The thrust of the points is that the first respondent: (a) attacked the eligibility of Mabalanganye to prosecute the enquiry under the terms of the Disciplinary Procedure; (b) attacked the eligibility of the second respondent to chair the enquiry under the terms of the Disciplinary Procedure; and (c) complained of a delay in the preparation of the charge sheet.

[26] The three points are clearly dilatory in nature, and without more they should not result in a dismissal of the charges. Rather, they should only result in a postponement of the enquiry to secure a suitable prosecutor or chairperson, or to remedy any prejudice caused by a late preparation of the charges.

[27] In the circumstances, the dismissal of the charges was unnecessary, and it has exposed the employer to the prejudice of an opportunistic

double-jeopardy defence if the charges are brought again.[3]

[28] Furthermore, by dismissing the charges the second respondent seems to have converted a procedural objection against his and the prosecutor’s appointments into a substantive defence against the charges.

[29] What adds to the incoherence of the ruling is that if the second respondent was satisfied that clause 7.7.1 introduced a bar against the appointment of a prosecutor who is more than one or two levels above the position of the accused employee, the same finding should have been made in respect of clause 7.6.1, given that the language of the two provisions is identical.

[30] Logically, if Mabalanganye was precluded from prosecuting the charges, the second respondent should also have been excused from hearing the enquiry. In other words, the ruling should have gone no further than to uphold the two points in limine relating to the appointments, and the enquiry should have been postponed for the allegedly irregular appointments to be remedied.

[31] Be that as it may, I am not satisfied that the points in limine were well brought, and it seems to me that in upholding the point in limine against Mabalanganye’s eligibility to act as prosecutor the second respondent made a decision that no reasonable decision-maker could or should have made.

[32] Counsel for both the applicants and the first respondent referred me to extensive authorities on interpretation, generally, and more specifically, on the interpretation of collective agreements. I do not need to examine these well-accepted principles in any great depth. Fundamentally, a collective agreement must be interpreted with a view to giving the words used by the parties, who have negotiated the terms of the contract, their plain, ordinary and popular meaning if there is no ambiguity.[4] A decision-maker, when interpreting a collective agreement is enjoined to consider inter alia the following trite principles:

32.1 When interpreting a collective agreement, the decision-maker is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he is therefore required to consider the aim, purpose and all the terms of the collective agreement;

32.2 The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the decision-maker to adopt an interpretation and application that is fair to the parties.

32.3 A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement.

32.4 The courts must therefore strive to give effect to that intention, and when tasked with the interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made.

[33] Clauses 7.6.1 and 7.7.1 are at face-value clear and unambiguous, and they regulate the appointment of prosecutors and chairpersons as follows:

33.1 The municipal manager must appoint suitably qualified employees to act as prosecutor and chairperson. There is no discretion in this regard.

33.2 Whilst the meaning of “suitably qualified” was not an issue before me, logic dictates that within this context an employee will be suitably qualified by virtue of his or her qualifications or training in human resources management, or his or her experience in the resolution of workplace disputes. There is no suggestion that the relevant person must be part of a human resources or industrial relations department, and it seems sensible that any employee who is experienced in managing workplace relationships and dynamics may be suitably qualified to act as a prosecutor or a chairperson, depending on the legal or factual complexity of the charges.

33.3 It is preferable that the person so appointed be one or two levels above the position of the accused employee (for ease of reference the “preferred seniority band”).

33.4 Any suggestion that there is an outright bar against the appointment of a prosecutor or chairperson who holds a position that is outside the preferred seniority band is immediately dispelled by the word “preferably” as it appears in both paragraphs.

33.5 The reasons for the discretion to appoint a prosecutor or a chairperson outside of the preferred seniority band may be manyfold, and I give the following obvious examples that may come to be in practice: (a) An employee may hold such a senior position that no suitably qualified employees in the preferred seniority band or above may be found; (b) Conversely, an employee may be so junior that the only suitably qualified employees are well above the preferred seniority band; (c) It may be the case that suitably qualified employees in the preferred seniority band cannot be appointed because of other commitments. (d) It may also be the case that suitably qualified employees in the preferred seniority band are unwilling to accept the appointment or should not be approached to accept the appointment because of actual or perceived conflicts of interest such as personal animosity towards the accused employee. (e) It may be the case that all suitably qualified employees in the preferred seniority band work closely or regularly with the accused employee and to avoid the perception of bias or the placing of the relevant employee in an awkward position a prosecutor and/or chairperson from outside the preferred band of seniority is appointed.

[34] This interpretation is bolstered by clauses 7.6.3 and 7.7.3 of the Disciplinary Procedure which provide the following (the portions of the quote in brackets identify the differences in the quoted clauses as they relate to chairpersons and prosecutors):

“Should it not be possible to appoint a suitably qualified person employed by the municipality, to serve as the [Presiding Officer // Employer Representative], due to a lack of suitably qualified persons, or where [Presiding Officers // Employer Representatives] are threatened or intimidated, the Municipal Manager or his authorised representative may appoint a suitably qualified external person [not employed by the municipality, to serve as the Presiding Officer // from outside its employ, excluding a legal practitioner, to serve as Employer Representative].”

[35] In other words, the Disciplinary Procedure allows for the use of external prosecutors and chairpersons when no suitably qualified employee can be appointed. But, the clauses do not contemplate the use of external parties when a suitably qualified prosecutor or chairperson is available, albeit outside of the preferred seniority band.

[36] If the employer was bound to appoint an employee within the preferred seniority band no doubt clauses 7.6.3 and 7.7.3 would allow for the use of external prosecutors and chairpersons if no employees within the band could be appointed.

[37] It is quite clear that on the express language of the Disciplinary Procedure clauses 7.6.1 and 7.7.1 do not introduce a bright line restraint against the use of a suitably qualified employee who is not within the preferred seniority band as a prosecutor or a chairperson.

[38] Any other interpretation would lead to absurdities and stands to cause the disciplinary process to become hamstrung, as has happened in this case. This interpretation also accords with the notion that collective agreements should be interpreted to facilitate an effective, fair and speedy resolution of labour disputes, rather than to introduce overly technical and mechanical obstructions to the quick and fair resolution of charges.

[39] In all the circumstances, I am satisfied that the second respondent’s ruling was not just wrong, but that it is also one that no reasonable decision-maker could or should have made. The ruling is contradictory, and it evidences no analysis of the points in limine which were in any event not well taken. The ruling was not made in accordance with the clear and unambiguous language of the Disciplinary Procedure, and there was no basis for the charges to have been dismissed. In all, the ruling is incoherent and irrational.

THE FIRST RESPONDENT’S BELATED POINT IN LIMINE

[40] On the morning of the hearing of this application counsel for the first respondent raised the point that this Court lacked the jurisdiction to hear the review because it is predicated on an interpretation of the Disciplinary Procedure which is a collective agreement. Therefore, she contended, the matter should be referred to the CCMA as provided for in section 24 of the LRA. No advance notice of the point was given to the Court, or to the applicants’ representatives.

[41] The point is without merit. Firstly, section 24(2)(1) of the LRA provides the following (with emphasis):

“(2) If there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute in writing to the Commission if-

“(a) the collective agreement does not provide for a procedure as required by subsection (1);

“(b) the procedure provided for in the collective agreement is not operative; or

“(c) any party to the collective agreement has frustrated the resolution of the dispute in terms of the collective agreement.”

[42] Section 24(1) in turn provides that:

“Every collective agreement … must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration.”

[43] The first respondent led no evidence that the Disciplinary Procedure does not provide for a dispute resolution procedure. In fact, clause 20 provides that:

“20. Disputes about the interpretation and application of this Collective Agreement shall be dealt with in terms of the dispute resolution mechanisms provided for in the Main Collective Agreement.”

[44] The first respondent led no evidence that clause 20 of the Disciplinary Procedure or the provisions of the Main Collective Agreement are not operative, or that any party has frustrated the resolution of an interpretative dispute. In fact, there is no evidence before the Court that any of the parties have invoked the dispute resolution mechanisms provided for in the Main Collective Agreement at all.

[45] Secondly, the meaning of clauses 7.6.1 and 7.7.1 was placed squarely before the second respondent as part of an objection against his and Mabalanganye’s appointments as chairperson and prosecutor. In other words, by virtue of the point raised by the first respondent, the second respondent was enjoined to interpret the Disciplinary Procedure as part of the disciplinary process.

[46] The second respondent was in turn entitled to deal with the point that the first respondent raised. This general entitlement is even contemplated in this case in clause 8.3.7 of the Disciplinary Procedure, entitled to: “make such interim determinations or rulings of law as he deem[ed] necessary...”.

[47] This Court, in turn, has the jurisdiction under Section 158 to hear a review against the second respondent’s ruling on the objection that the first respondent placed before him.

[48] The belated point in limine must be dismissed.

Finding

[49] During argument, counsel for the first respondent conceded that the challenge to Mabalanganye’s eligibility to act a prosecutor should not have resulted in the dismissal of the charges, and on that basis alone, the matter should be remitted.

[50] But despite this concession something must be said of way that the charges against the first respondent have been derailed by way of a scheme of unmeritorious technical points.

[51] The first respondent raised preliminary points before the first chairperson, and then again before the second respondent. The ruling on the latter set of points has led to this review application. Each disclosed point has been dilatory, and did not fall to be dispositive of the charges.

[52] As set out above, when the review application came before me the first respondent raised a further point in limine against the jurisdiction of this Court.

[53] In Tshwane City v Afriforum & Another[5] the Constitutional Court held the following:

“Our peculiarity as a nation impels us to remember always that our Constitution and law could never have been meant to facilitate the frustration of real justice and equity through technicalities. The kind of justice that our constitutional dispensation holds out to all our people is substantive justice. This is the kind that does not ignore the overall constitutional vision, the challenges that cry out for a just and equitable solution in particular circumstances and the context within which the issues arose and are steeped. We cannot emphasise enough that form should never be allowed to triumph over substance.”

[54] As matters now stand, some four years after the charges were levelled against the first respondent, the merits of the charges have not been addressed or ventilated. It is not in the interests of justice that the ventilation of a simple but important charge should have been sidelined for close to half a decade, and the first respondent’s approach to the charges must be deprecated.

[55] Although in the notice of motion the applicants seek costs against any party opposing the review application, at the hearing counsel for the applicants informed me that the applicants do not seek costs against the first respondent.

[56] I am satisfied that Mr Livingstone Mabalanganye was properly appointed to prosecute the charges. I am also satisfied that the second respondent’s ruling should be set aside, and that the matter should be remitted to the Municipal Manager to be heard de novo before a new disciplinary chairperson appointed by the applicants. In the circumstances, I make the following order:

Order

1. The review application is upheld.

2. The ruling handed down by the second respondent on 25 March 2022 is reviewed and set aside.

3. It is declared that Mr Livingstone Mabalanganye was properly appointed to prosecute the charges against the first respondent in accordance with clause 7.7.1 of the Disciplinary Procedure Collective Agreement concluded between the South African Local Government Association, the Independent Municipal and Allied Trade Union and the South African Municipal Workers’ Union on 6 February 2018.

4. The matter is remitted to be heard de novo before a new disciplinary chairperson appointed by the applicants.

5. There is no order as to costs.

Acting Judge of the Labour Court of South Africa

Appearances:

For the First and Second Applicants: Instructed by: Mr D Mer (Attorney) Lawtons Africa For the First and Second Respondents: Instructed by: Ms G Phakedi (Attorney) Phakedi Incorporated

[1] See the paragraph immediately preceding paragraph 4.(B) of the ruling in which the second respondent records that: “Various other issues were raised … but the above 5 were the most contagious I believe.”

[2] Although the second respondent recorded that “it is clear from the above”, he did not examine for his own account the points in limine at all in the preceding paragraphs of his ruling. He merely recorded the parties’ submissions.

[3] In SAMWU v Local Government Bargaining Council and Others [2023] 6 BLLR 581 (LC) the Labour Court confirmed that an employee can institute disciplinary action a second time for conduct that arose from the same set of facts and that fairness will determine whether the employer is justified in instituting disciplinary action a second time.

[4] Western Cape Department of Health v Van Wyk and Others (2014) 35 ILJ 3078 (LAC) at para 22. Also see BIFAWU v CCMA [2019] JOL 42295 (LC) at [15].

[5] 2016 (6) SA 279 (CC) at 18.