Independent Municipal & Allied Trade Union obo Silver & 3 Others v The Dawid Kruiper Local Municipality and Others (J 4023/2018) [2022] ZALCJHB 239 (26 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 4023/2018

In the matter between:

INDEPENDENT MUNICIPAL & ALLIED

TRADE UNION obo I SILVER & 3 OTHERS

APPLICANT

And

THE DAWID KRUIPER LOCAL MUNICIPALITY 1ST RESPONDENT

L, DE WEE

2ND RESPONDENT

B, NAPAKADI

3RD RESPONDENT

O, JOB

4TH RESPONDENT

V, BIYO

5TH RESPONDENT

F, NZONDO

6TH RESPONDENT

E, NTAKATSANDE

7TH RESPONDENT

M, BASSOON

8TH RESPONDENT

S, VAN SCHALKWYK

9TH RESPONDENT

E, SOKABA

10TH RESPONDENT

A, SNYDERS

11TH RESPONDENT

M, SANDLANA

12TH RESPONDENT

C, MALGAS

13TH RESPONDENT

Z, MOYO

14TH RESPONDENT

E, SWARTZ

15TH RESPONDENT

A, FAKU

16TH RESPONDENT

B, JACK

17TH RESPONDENT

D, VAN WYK

18TH RESPONDENT

F, FUBU

19TH RESPONDENT

R, COETZEE

20TH RESPONDENT

J, GATYENI

21ST RESPONDENT

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 26 August 2022.)

JUDGMENT

VAN NIEKERK, J

[1] On 25 May 2022, the draft order agreed by the parties was made an order. In terms of the order, the first respondent’s promotion and appointment of the fifth, sixth, seventh, tenth, fourteenth, seventeenth and eighteenth respondents into various positions in the first respondent’s organisational structure and organogram was declared unlawful. (The other respondents had either withdrawn, were no longer employed by the first respondent or excluded for other reasons). The appointments and promotions concerned had taken effect from 1 May 2017. In terms of the order, both parties were given leave to file further affidavits and heads of argument dealing with the remedy that the applicant might be afforded consequent on the declaration of unlawfulness.

[2] The application that served before the court was one of review, in which the applicant sought to set aside the appointment and/or promotion of various of the individual respondents by the first respondent (the municipality). The basis of the application was the applicant’s averment that the means Balotelli had failed to comply with applicable regulatory measures and in particular, in circumstances where the municipality had failed to advertise, shortlist and conduct interviews prior to the promotions concerned. When the matter was called, the municipality did not dispute that certain appointments fell foul of clause 15.1 of the applicable SALGA agreement, and subsequent discussions resulted in the order granted by consent.

[3] On 26 May 2022, the first respondent’s attorneys of record withdrew on account of their mandate having been terminated. Supplementary affidavits were filed on behalf of the applicant.

[4] The only issue before the court is that of a just and equitable remedy. In Khumalo & another v MEC Education KwaZulu-Natal (2013) 34 ILJ 296 (LAC). The Labour Appeal Court had to consider the matter where an employee (Ritchie) applied for a vacant position but was excluded from the shortlist. One Khumalo was appointed to the vacant position. Ritchie challenged his exclusion and the settlement was reached on the basis that he would be offered a protected promotion. Sometime later, a complaint was lodged with the MEC when it was alleged that both the appointment of Khumalo and Ritchie were irregular, since neither were suitably qualified. An investigation was conducted and in consequence, the MEC approach the court by way of review to have the appointment set aside. The Labour Appeal Court held that ordinarily, the setting aside of appointments would have ‘huge implications’ for incumbents but equally, that successful applicants are entitled to be treated with fairness and respect. The LAC, while it acknowledged the prejudice to the incumbents, set aside the appointments of both Khumalo and Ritchie. In an appeal to the Constitutional Court, the court set aside the LAC’s order, on the basis that the MEC was non-suited on account of the delay in filing the review application, but the LAC’s observations on them remain instructive nonetheless.

[5] What Khumalo makes clear is that a state functionary may seek recourse to establish the unlawfulness of its own institutions actions and that

the court is empowered to fashion a remedy that is just and equitable. Khumalo also makes clear that given the court’s remedial powers in terms of section 170 (1) (b) of the constitution to grant a ‘just

and equitable’ order, while the court must declare conduct that it finds to be unconstitutionally invalid, it need not set the conduct aside. In Khumalo’s case, he had continued with his life and employment for a period of nine years prior to the

application to set aside his appointment, in circumstances where the facts did not disclose any wrongdoing on his part.

[6] In terms of the order granted on 25 May 2022, the promotion and appointment of the individual respondents recorded in paragraph 1 of the order is declared unlawful. In the present instance, despite the lapse of time since the appointments and promotions concerned became effective, I see no reason to deny the applicants the relief they seek in the notice of motion. The factual circumstances in the present instance do not warrant some form of alternative intervention. The fact is that the first respondent has conceded that its actions were unlawful, and this is the case in which the consequence of invalidity ought properly to follow. It would be just and equitable, in my view, to temper the order sought so as to make clear that the present incumbents are not obliged to reimburse the first respondent for any remuneration and during the period that they have occupied the post concerned. There is no suggestion in the papers that they themselves were privy to any acts of wrongdoing; I will accept that their irregular and unlawful appointments was the consequence of conduct by others.

[7] Finally, it would seem to me for the purposes of section 162 of the LRA that the requirements of the law and fairness are best served by each party bearing its own costs.

Order

1. The first respondent’s promotion and appointment of the 5th, 6th, 7th, 10th, 14th, 17th and 18th respondents into various positions in the first respondent’s organisational structure and organogram, such appointments and/or

promotions taking place on 1 May 2017, is set aside.

2. The first respondent is ordered to appoint persons into the positions occupied by the above individual respondents, in strict accordance with the procedure envisaged in the first respondent’s council resolution of 25 November 2008, and the Selkirk Main collective agreement of 2017.

3. Nothing in this order shall require any of the individual respondents named in paragraph 1 to repay to the first respondent any remuneration and all the value of any benefits received consequent on their appointments or promotions implemented on 1 May 2017.

André van Niekerk

Judge of the Labour Court of South Africa