Inxuba Yethemba Municipality v Msweli and Others (PR198/21) [2025] ZALCPE 6; [2025] 7 BLLR 710 (LC); (2025) 46 ILJ 1725 (LC) (7 April 2025)

Inxuba Yethemba Municipality v Msweli and Others (PR198/21) [2025] ZALCPE 6; [2025] 7 BLLR 710 (LC); (2025) 46 ILJ 1725 (LC) (7 April 2025)

The Labour Court found that the arbitrator failed to properly evaluate the gravity of the municipal manager's misconduct, which included the unlawful appointment of a service provider without following supply chain management procedures and the approval of a variation order in excess of financial delegations. The arbitrator incorrectly minimized the seriousness of the misconduct, disregarded the statutory and fiduciary duties of the municipal manager, and failed to appreciate the element of dishonesty and the destruction of the trust relationship. The municipal manager's conduct was accompanied by a fabricated defence and concealment from Council and other officials. The misconduct was...

Citation
[2025] ZALCPE 6
Parties
Applicant: Inxuba Yethemba Municipality; Respondent: Xolela Msweli; Respondent: South African Local Government Bargaining Council; Respondent: Commissioner Kelvin Kayster
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
7 April 2025
Case Number
PR198/21
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award set aside; dismissal of municipal manager found to be fair.
Judges
Kroon, AJ
Legal Topics
Financial Misconduct, Municipal Manager Dismissal, Supply Chain Management, Regulation 36 Deviation, Irregular Expenditure, Disciplinary Procedure
Labour Law Administrative Law Civil Procedure Financial Misconduct Municipal Manager Dismissal Supply Chain Management Regulation 36 Deviation Irregular Expenditure +1 more

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Parties

Inxuba Yethemba Municipality

Applicant

Xolela Msweli

Respondent

South African Local Government Bargaining Council

Respondent

Commissioner Kelvin Kayster

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's decision to reinstate the municipal manager despite proven financial misconduct was reasonable.
  2. 2 Whether the gravity of the misconduct justified dismissal rather than progressive discipline.
  3. 3 Whether the arbitrator failed to properly apply his mind to the evidence and legal principles.

Ratio Decidendi

The Labour Court found that the arbitrator failed to properly evaluate the gravity of the municipal manager's misconduct, which included the unlawful appointment of a service provider without following supply chain management procedures and the approval of a variation order in excess of financial delegations. The arbitrator incorrectly minimized the seriousness of the misconduct, disregarded the statutory and fiduciary duties of the municipal manager, and failed to appreciate the element of dishonesty and the destruction of the trust relationship. The municipal manager's conduct was accompanied by a fabricated defence and concealment from Council and other officials. The misconduct was...

Court Disposition

Arbitration award set aside; dismissal of municipal manager found to be fair.

Orders

  • Condonation is granted for the late delivery of the replying affidavit.
  • The arbitration award issued under case number ECD 052101, dated 22 September 2021, is reviewed and set aside.