Merafong City Local Municipality v Hobe and Others (JR865/18) [2021] ZALCJHB 94 (4 May 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR865/18

In the matter between:

MERAFONG CITY LOCAL MUNICIPALITY Applicant

and

DANIEL MTWAKAZIWA HOBE First Respondent

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL Second Respondent

T.D.K. MATEE N.O. Third Respondent

Heard: 28 April 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 04 May 2021.

Summary: Review application – Section 55(1) of the Municipal Systems Act does not clothe the municipal manager with authority to institute court proceedings on behalf of the municipality – the municipal manager must be duly authorised and directed by the municipal council in terms of its resolution or written delegated authority.

JUDGMENT

NKUTHA – NKONTWANA, J

[1] This application turns on a crisp issue as to whether the respondent employee (Mr Hobe) could still pursue a dismissal claim in terms of section 186(1)(b)(ii) of the Labour Relations Act[1] (LRA) following an unsuccessful application for the very same position he claimed to harbour a reasonable expectation that the applicant (Municipality) was going to extend on an indefinite basis but failed.

[2] The position of Executive Director: Community Services is directly accountable to the Municipal Manager and Mr Hobe’s appointment was subject to sections 56 and 57 of the Local Government: Municipal Systems Act[2] (Systems Act). Mr Hobe was appointed to the position of Executive Director: Community Services on fixed-term contract basis from December 2013 to 31 May 2017. This appointment constituted a promotion as he had been in the employ of the Municipality since September 2002 and occupied various permanent positions.

[3] Towards the end of May 2017, the Municipality extended Mr Hobe’s fixed-term contract of employment to 31 July 2017. Meanwhile, the position of Executive Director: Community Services was advertised as a permanent position. Mr Hobe accordingly applied and was unsuccessful. He is adamant that he availed himself to the competitive recruitment process without prejudice to his right to claim permanent employment.

[4] Subsequent, Mr Hobe challenged the termination of his fixed term contract of employment as unfair dismissal as contemplated in terms of section 186(1)(b)(ii) of the LRA. The third respondent (Arbitrator) issued the arbitration award under case number GOD081723 dated 28 March 2018 wherein he found in Mr Hobe’s favour and reinstated him with compensation equivalent to four months’ remuneration.

[5] In these proceedings, the Municipality seeks an order reviewing and setting aside the award mainly on the ground that the Arbitrator incorrectly clothed himself with the jurisdiction to deal with the matter despite the fact that Mr Hobe failed to prove that he was dismissed. The Municipality contends that, by participating in a competitive recruitment process for the vacant post, Mr Hobe essentially acknowledged that his fixed term contract of employment came to an end.

[6] Mr Hobe fervidly opposes the application and, in limine, takes several points which include the authority of the Municipality to institute these proceedings. He contends that, absent the resolution by the Municipal Council authoring the Municipal Manager to institute these proceedings; alternatively, a proof that it has delegated these powers to the Municipal Manager, the Municipality is not properly before the Court. On this ground alone, the review application falls to be dismissed, so he further contends.

[7] The Municipality failed to deal with this impugn in its papers. Nonetheless, its counsel submitted the Municipal Manager relies on section 55(1) of the Systems Act. This cold hearted defence is, in my view, flawed. It is well accepted that the executive authority of a Municipality does not vest in its Municipal Manager or any of its employees; but in its Municipal Council is in terms of section 151(2) of the Constitution.

[8] Notably, section 55 (1)(p) of the Systems Act provides that the Municipal Manager as head of administration of a Municipality is, subject to the policy directions of the Municipal Council, responsible and accountable for the implementation of national and provincial legislation applicable to the Municipality.

[9] In Manana v King Sabata Dalindyebo Municipality,[3] the Supreme Court Appeal, per Nugent JA, held that:

‘… s 55(1) is no more than a statutory means of conferring such power upon municipal managers to attend to the affairs of the municipality on behalf of the municipal council. There is no basis for construing the section as simultaneously divesting the municipal council of any of its executive powers. Indeed, as I have already pointed out, the Constitution vests all executive authority – which includes the authority to appoint staff – in the municipal council and legislation is not capable of lawfully divesting it of that power. To the extent that there might be any ambiguity in the statute in that respect it must be construed to avoid that result.’

[10] Flowing from the above authority is that, if the Municipal Council intended to institute legal action, it should have taken a resolution to empower the Municipal Manager to institute court proceedings on its behalf. As well, it is not the Municipality’s case that the Municipal Manager instituted these proceedings in terms of the delegated authority which, any event, must be in writing.[4]

[11] So, it stands to reason that the authority to institute court proceedings on behalf of the Municipality does not come into being by the mere appointment of a Municipal Manager as an accounting officer. He must be duly authorised and directed by the Municipal Council to institute court proceedings on behalf of the Municipality.

[12] Accordingly, Mr Hobe’s point in limine must to be upheld and application be dismissed.

[13] There is no reason to deal with all the other issues that arose in this application in the light of the above.

[14] It is trite that costs do not follow the result in this Court. All the same, in the present instance, it accords with the principles of fairness and equity that the Municipality be ordered to pay the costs. Mr Hobe, an individual litigant, had to incur legal costs in order to vindicate his rights against the blatantly flawed proceedings.

[15] In the premises, the application is dismissed with costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Advocate YF Saloojee

Instructed by: Ntanga Nkuhlu Inc.

For the First Respondent: Mr V Mkwibiso of Mathopo Moshimane Mulangaphuma Inc.

[1] Act 66 of 1995, as amended.

[2] Act 32 of 2000, as amended.

[3] [2011] 3 All SA 140 (SCA) at para 17.

[4] Magodongo v Khara Hais Municipality & Others (2018) 39 ILJ 406 (LC) at paras 30-31.