Khawula v Dannhauser Local Municipality and Another (5248/08) [2009] ZAKZPHC 53 (6 November 2009)

Khawula v Dannhauser Local Municipality and Another (5248/08) [2009] ZAKZPHC 53 (6 November 2009)

The court found that the Local Government: Municipal Performance Regulations and the disciplinary code of the South African Local Government Bargaining Council did not apply to the applicant's employment contract, as the contract was concluded before the regulations came into force. Clause 4.2 of the contract...

Source-derived case information.

Citation
[2009] ZAKZPHC 53
Parties
Applicant: Bhekani Paulos Khawula; Respondent: Dannhauser Local Municipality; Respondent: M. V. Phatsoane
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
6 November 2009
Case Number
5248/08
Procedural Posture
Review Application / Judgment
Outcome
The review application is dismissed with costs.
Judges
Van Zÿl
Legal Topics
Municipal Manager Dismissal, Disciplinary Code Interpretation, Ultra Vires, Procedural Fairness, Substantive Fairness
Labour Law Administrative Law Municipal Manager Dismissal Disciplinary Code Interpretation Ultra Vires Procedural Fairness Substantive Fairness

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Summary, issues, holding and outcome

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Parties

Bhekani Paulos Khawula

Applicant

Dannhauser Local Municipality

Respondent

M. V. Phatsoane

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the first respondent's council acted ultra vires in disregarding the appeal recommendations of the second respondent.
  2. 2 Whether the disciplinary code and procedures of the South African Local Government Bargaining Council or the Local Government: Municipal Performance Regulations applied to the applicant's employment contract.
  3. 3 Whether the decision to dismiss the applicant was procedurally and substantively fair and susceptible to review.

Ratio Decidendi

The court found that the Local Government: Municipal Performance Regulations and the disciplinary code of the South African Local Government Bargaining Council did not apply to the applicant's employment contract, as the contract was concluded before the regulations came into force. Clause 4.2 of the contract provided for an appeals procedure but did not make the appeal tribunal's recommendations binding on the employer. The council of the first respondent was entitled to make the final decision regarding the applicant's dismissal. The applicant was given an opportunity to make representations before the council, satisfying procedural fairness. The misconduct for which the applicant was...

Court Disposition

The review application is dismissed with costs.

Orders

  • The review application is dismissed.
  • The applicant is ordered to pay the costs of the application.