Mere v Chairperson of the North West Provincial Executive Council and Others (M454/2015) [2017] ZANWHC 26 (15 June 2017)

IN THE HIGH COURTOF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: M454/2015

Not reportable

Circulate to Judges

In the matter between:

SHADRACK KOTLHAO MERE APPLICANT

and

CHAIRPERSON OF THE NORTH WEST

PROVINCIAL EXECUTIVE COUNCIL 1ST RESPONDENT

PREMIER OF THE NORTH WEST PROVINCE 2ND RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL:

DEPARTMENT OF LOCAL GOVERNMENT

AND HUMAN SETTLEMENTS, NORTH WEST 3RD RESPONDENT

MINISTER: CORPORATE GOVERNANCE AND

TRADITIONAL AFFAIRS 4TH RESPONDENT

CHAIRPERSON OF THE NATIONAL COUNCIL

OF PROVINCES 5TH RESPODENT

TSWAING LOCAL MUNICIPALITY 6TH RESPONDENT

G.M.P PHOLO

(ADMINISTRATOR OF SIXTH RESPONDENT) 7TH RESPONDENT

JUDGMENT

GURA J:

Introduction

1. This is an application for leave to appeal in respect of paragraphs 66.1, 66.3 and 66.4 of the order and judgment handed down by the Court on 30 June 2016, in terms of which this Court dismissed the applicant’s main application with costs and granted the 6th and 7th respondents’ counter application with costs. The application for leave to appeal is accompanied by an application for

condonation of the late filing of such application.

Factual Background

2. The applicant was appointed by the sixth respondent’s Municipal Council as its Municipal Manager with effect from 1 April 2012. The appointment was made in terms of Section 54A of the Local Government: Municipal Systems Act (“the Systems Act”).[1] Section 54A was inserted in the principal Act by Section 2 of the Local Government: Municipal Systems, Amendment Act (“the Systems Amendment Act”).[2] The latter Act came into operation on 5 July 2011.[3] Further developments after the appointment of the applicant have been set out by the court in paragraph 7 to 9 of the judgment, I quote:

7. “On 18 June 2015 the applicant was suspended with immediate effect in terms of a notice of suspension issued by the seventh

respondent’s predecessor, Mr. Sehularo. The latter was subsequently replaced by the seventh respondent, with effect from 17 August 2015. On 9 September 2015 the applicant, whilst still on suspension, was served with another notice reflecting the sixth and seventh respondents’ intention to suspend him (applicant) in terms of Regulation 6 of the Local Government: Disciplinary Regulations for Senior Managers, 2011.

8. On 17 September 2015 the applicant was served with a letter informing him that his initial suspension would lapse on 18 September 2015; and instructing him to return to work on 21 September 2015 and to report to the seventh respondent.

9. On 21 September 2015 when he reported for duty as instructed, the applicant was served with a notice informing him of his suspension

for a further period of three (3) months”.

3. On 23 October 2015 the applicant received a letter from the sixth and seventh respondents’ attorneys, the relevant parts of which read as follows:

“2. From the facts set out in the above referred to an affidavit it is evident that your client’s appointment as the municipal manager of our client lapsed as a result of the non-compliance with the peremptory provisions of section 57(2)(a)(i) of the Local Government: Systems Act, Act 32 of 2000 ( herein after “the system Act”). The pertinent facts surrounding this lapsing are comprehensively set out in the above referred to answering affidavit.

_ _ _

5. Your client was afforded, and utilised the opportunity presented by him resisting the counter application launched by our client to fully and comprehensively set out any possible defence and or contrary arguments your client may have to dispel inevitable consequences

dictated by the provisions of Section 57(2)(a)(1) of the Systems Act. Your client only raised the defence “estoppel”.

7. Therefore and as a prescribed and mere consequence of the fact that the peremptory provisions of section 57(2)(a)(i) of the Systems Act were not compiled with, your client’s appointment as municipal manager of our client lapsed.

9. The principle of “legality” dictates that our client has to observe and give effect to the statutory stated consequences of the Systems Act. Our client has no election or discretion in this regard.”

The sixth respondent has since service of the aforementioned letter, ceased to perform in accordance with the applicant’s contract of employment.

4. The following facts are of importance insofar as the sixth respondent was subjected to a section 139(1)(b)[4] intervention (“ the section 139 intervention”). On 29 April 2015, the Executive Council of the North West Province

adopted a resolution to intervene in the sixth respondent by invoking the provisions of section 139(1)(b) of the Constitution. It is common cause that the intervention was with effect from 1 May 2015 and that Mr. KK Sehularo was appointed as Administrator with effect from 15 May 2015. On 28 August 2015, the third respondent replaced the Administrator by appointing the seventh respondent as Administrator of the sixth respondent with effect from 17 August 2015. On 1 June 2015 the fourth respondent approved the section 139 intervention in terms of a notice addressed to the third respondent dated 1 June 2015. The National Council of Provinces (“NCOP”) approved the section 139 intervention on 3 September 2015 by adopting a report prepared and presented to the NCOP by its Select Committee. In this application, the NCOP has been cited as the fifth respondent.

5. The issues in the judgment of June 30, 2016 were:

1. The status of the applicant’s appointment;

2. The status of the section 139 intervention; and

3. The applicant’s entitlement to payment of his remuneration for the period from 1 October 2015 to 23 October 2015, the day on which the sixth respondent and seventh respondents’ attorneys informed the applicant’s attorneys of their decision to apply and implement section 57(2)(a)(i) of the Systems Act. This issue stands independent from the first two issues.

6. The ultimate ruling and order of this Court appears at paragraph 66 of the judgment of 30 June 2016. It reads:

“6.1 The Main Application is dismissed with costs.

6.2 The sixth respondent is ordered to pay the applicant’s salary (which is equal to a pro rata salary payment of a municipal manager of the sixth respondent) for the period 1 to 23 October 2015.

6.3 Counter Application:

The applicant’s appointment as Municipal Manager of the sixth respondent lapsed in terms of section 57(2)(a)(i) of the Systems Act.

6.4 Counter Application costs:

The applicant is ordered to pay the sixth and seventh respondents’ costs”

7. In respect of the present application (for leave to appeal) only two issues are at stake

7.1 The status of the applicant’s appointment; and

7.2 The status of the section 139 intervention.

Grounds for leave to appeal

8. The Applicant relies on five grounds in support of his application for leave to appeal.

The first ground

8.1 The Court a quo erred in concluding that the applicant’s appointment lapsed as a consequence of the provisions of Section 57(2)(a)(i) of the Systems Act as amended by the Systems Amendment Act without having regard to the possible effect of the judgment and order granted in South Africa Municipal Workers union v The Minister of Co-operative Governance and Traditional Affairs & Others[5] in terms of which Jansen J ordered inter alia that:

“1. It is declared that the Local Government Municipal Systems Act 7 of 2011 is invalid in its entirety for want of compliance with the procedures set out in section 76 of the Constitution.

2 In terms of the provisions of section 167(5) of the Constitution order number (1) above is referred to the Constitutional Court for confirmation.”

The Constitutional Court still stands to confirm the aforementioned order.

The second ground

8.2 The Court a quo erred in law, alternatively misdirected itself by concluding that Section 57(2)(a)(i) of the Systems Amendment Act requires a positive

act on the part of the applicant within the 60 days period prescribed by the section. The Court a quo ought to have concluded that the aforementioned section should be interpreted, insofar as the so-called condonation provision, that “good cause” can be shown outside the 60 days period and without the appointment lapsing, alternatively that the appointment can be revived as a consequence of good cause been shown outside the 60 days period;

Alternatively, that the 60 days period was extended by virtue of parties’ conduct.

The third ground

8.3 The Court a quo erred in law in determining that the doctrine of estoppel does not find positive application in casu;

The fourth ground

8.4 The Court a quo erred in law, insofar as the interpretation of section 139(2) of the Constitution, in particular section 139(2)(b). The Court ought to have concluded that section 139(2)(b)(i) and (ii) stands separate and operates independently. The Court a quo therefore ought to have concluded that the intervention lapsed on 29 May 2015.

The fifth ground

8.5 The Court a quo erred and / or misdirected itself in failing to conclude that 6th and 7th respondents acted unlawfully and / or took an invalid decision by failing to comply with the applicant’s contract of employment without approaching a competent court to obtain a declaratory order in so far as the status of the applicant’s appointment.

The test for leave to appeal

9. Leave to appeal may be granted to an applicant if he has reasonable prospects of success on appeal.[6] LAWSA states: [7]

“The matter should be decided without reference to the wishes of the parties. Leave is granted, not in respect of the reasons for the judgment or order, but in respect of the judgment or order itself. The success must relate to the outcome of the case and not to an argument that does not dispose of the case in favour of the applicant. In other words, objection cannot be levied at a faulty reasoning only; it is the consequences of such reasoning that may be the subject of an appeal. The importance of a matter is also not on its own a justification for granting leave to appeal.”

10. Joubert[8] is of the view that the test is then whether the appeal, if leave was granted, would lead to a just and reasonable prompt resolution of the real issue between the parties. The test to be applied to an application for leave to appeal has now been codified, to some extent by means of section 17 of the Superior Courts Act[9], section 17(1) providing:

“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)(i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

11. The Constitutional Court has broadened the criterion, by determining that not only should the Court have jurisdiction in the granting of leave to appeal be in the interest of justice, but that the prospects of success is an important criterion. In NUMSA & Other v Bader Bop (Ltd) & Another[10], the Court held that prospects of success on the appeal will be an important, though not determinative, criterion.

The unconstitutionality of the Local Government Municipal Systems Amendment Act, No.7 of 2011

12. This Court determined the status of the Applicant’s appointment, with reference to the relief sought in terms of both the main and the counter application, upon the Court’s interpretation of section 57(2)(a)(i) of the Systems Act which provides:

“(a)(i) be concluded within 60 days after a person has been appointed as the municipal manager or as manager directly accountable to the municipal manager, failing which that appointment lapses: Provided that, upon good cause shown by such person to the satisfaction of the municipality, the appointment shall not lapse;”

Section 6 of the Municipal Systems Amendment Act amended section 57(2)(a) of the Principal Act to the extent as recorded above. Section 57(2)(a) of the Principal Act, prior to its amendment provided that:

“be concluded within a reasonable time after a person has been appointed as the municipal manager or as a manager directly accountable to the municipal manager and thereafter within one month after the beginning of the financial year of the municipality;”

13. When the application for leave to appeal was argued before me on 03 February 2017 the Constitutional Court had not yet confirmed the declaration of invalidity of the Systems Amendment Act which was made by the Gauteng Court.[11] The Constitutional Court, on 9 March 2017, did confirm the High Court order of declaration of invalidity.[12] Paragraph 1 and 2 of the Court order reads:

“1. The declaration of invalidity of the Local Government; Municipal Systems Amendment Act 7 of 2011, made by the High Court of South

Africa, Gauteng Division, Pretoria , is confirmed.

2. The declaration of invalidity is suspended for a period of 24 months to allow the Legislature an opportunity to correct the defect…..”

14. The crucial question is the effective date of the declaratory order. The declaration of invalidity by the Gauteng Division of the High Court is of no consequence, force or effect until such time as the Constitutional Court confirms it (declaration of invalidity). In this regard reference must be made to the provisions of section 167(5) of the Constitution which stipulates that “The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force.”

Section 72(2)(a) of the Constitution emphasizes this aspect:

“The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order concerning the constitutional

validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.”

15. In S v Manyonyo[13] the court had to decide whether a confirmation of a declaratory order by the Constitutional Court had retrospective effect or not.

Chaskalson P held at paragraph 16:

“The question which then arises is whether the declaration of invalidity made in S v Mjezu was binding throughout the country or only in the Northern Cape Division. If it was binding throughout the country there is no need for an order declaring that the section is inconsistent with the interim Constitution to be made by this Court. But if the order was binding only in the Northern Cape, this Court would have to extend the declaration of invalidity to the whole country. In that event consideration would have to be given to the conditions to be attached to the order relating to its retrospective effect. Ordinarily the retrospective effect of such an order is limited to cases in which judgment has not yet been given or in which appeals and reviews are still pending. But S v Mjezu was decided in 1996. There may be cases that were disposed of between the date of the judgment in that case, and the decision in this case, in which appeals or reviews are not pending, but to which the decision in this case might be pertinent.

…

…For the sake of clarity, and in order to avoid any uncertainty that might otherwise exist, I propose making an order that will have the effect of ensuring that the declaration of invalidity applies throughout the whole country. The retrospective effect of the order will be couched in the usual terms, but this will not preclude any person who might possibly be prejudiced thereby if the decision in S v Mjezu was binding throughout the whole country, from contending that this was so, and if that should be necessary, from applying to this Court to amplify or amend the terms of the order made in the present case.”

16. The Court (in Manyonyo) then made the following order:

“1. Section 21(1)(c) of the Drugs and Drug Trafficking Act 140 of 1992 is declared to be inconsistent with the interim Constitution, and accordingly to be of no force and effect.

2. Subject to paragraph 3 hereof, the declaration of invalidity made in terms of paragraph 1 of this order shall invalidate any application of section 21(1)(c) of the Drugs and Drug Trafficking Act in any criminal trial in which the verdict of the trial court was entered after the interim Constitution came into force, and in which as at the date of this judgment, either an appeal or a review is pending, or the time for noting an appeal has not yet expired.

3. The orders made in paragraph 1 and 2 hereof shall not preclude any persons who might otherwise be adversely affected thereby, from contending that the order made in the case of S v Mjezu by the Northern Cape Division of the Supreme Court on 6 May 1996 is

applicable to them, and in so far as that may be necessary, from applying to this Court to amplify or amend the orders made in

paragraphs 1 and 2 hereof.

4. This case is referred back to the Eastern Cape High Court to be dealt with in accordance with this judgment”.

17. It is my considered view that since the declaration of invalidity was confirmed on 9 March 2017, that such order has no retrospective effect. The present matter before this Court remains unaffected by paragraph 1 and 2 of the Constitutional Court order. It should be borne in mind that despite the declaration of invalidity on 9 March 2017, its operation was suspended for two years.

The Second and third grounds

18. In his heads of argument, Mr. Scholtz for the applicant made the following submissions:

18.1 The second ground for leave to appeal directly relates to this Court’s interpretation of Section 57(2)(a)(i), in particular

the application in terms thereof. This Honourable Court came to the following conclusion:

“In my view, before the expiry of the sixty days, the onus is on the applicant, but not on the Municipality or its Council to show good cause to the employer (sixth respondent) why the appointment shall not lapse. This is a positive but not a passive act on the applicant. If he fails to take a positive step to show good cause to the employer, his employment will automatically lapse at the end of sixty days. In determining whether good cause has been shown, the conduct of the sixth respondent is irrelevant. The purported renewable of the appointment of the applicant beyond the sixty days period is illegal and a nullity because it flies into the face of section 57(2)(a)(i)”

It is the Applicant’s contention that this Honourable Court erred insofar as the abovementioned interpretation in that the said Section ought to have been interpreted in a manner as set forth under paragraph 20.2.1 and 20.2.2 of this judgment.

18.2 In Maphumo Local Municipality v Mhlongo and Others the Labour Court considered a review application which had, at the heart thereof, a legal question pertaining to the conclusion of a performance agreement in terms of section 57(2) of the Systems Act and the validity of a fixed term contract of that Municipality’s

Municipal Manager as a consequence of the failure to conclude the prescribed performance agreement. Whitcher J held:

“While the failure to agree to the terms of a performance agreement may, contractually and proactively, be invoked as grounds for termination of a contract in terms of the contract itself, I am loathe to have this count against the employee in circumstances where his employer has tolerated the absence of a performance agreement, it seems, for many years. I note that clause 15 of Mhlongo’s contract specifically provides for the municipality to call upon him to remedy any breach of the contract that they are moved to enforce. I do not find any mention that Mhlongo was placed on terms to conclude a performance agreement in the record. It strikes me, as it apparently did the arbitrator too, to be an ex post facto rationalisation for an otherwise unfair action that labour tribunals should, for policy reasons, not countenance.”

18.3 The High Court equally, in the matter of Strickett v Matjhabeng Local Municipality, considered compliance with section 57 of the Systems Act. The matter concerned an exception in relation to a claim for damages, in terms of which the defendant challenged the disclosure of a cause in action and which directly related to both the conclusion of a contract of employment and a performance agreement. In considering the parties’ obligation in terms of, and non-compliance with section 57(2) of the Systems Act,Hancke J held:

“As far as non-compliance with section 57(2) (referring to the performance agreement) is concerned it is important to note that the

said agreement must include performance objective targets that must be met within certain time frames as well as standards and procedures for evaluating performance as well as intervals for evaluation. It also refers to the consequences of substandard performance. This section is clearly to the benefit of the employer because it would be ridiculous to expect an employer to be the author of these targets and objectives. The onus was therefore on the defendant to see to it that section 57(2) has been complied with within a reasonable time. In any event it cannot be decided at this stage whether a reason able time has expired. In view of the aforegoing I am of the view that a valid contract of employment complying with the provisions of section 57(2) of the Act had been concluded. notwithstanding the fact that no performance agreement was entered into.

It is of importance to mention that the Applicant’s contract in casu contains a similar provision under clause 15.1, which must be read with clause 15.1(a)(i) and clauses 2.4 and 2.4.1.

18.4 This Honourable Court furthermore erred insofar as the interpretation in relation to the use of the word “must”, with reference to section 57(2), considering that this interpretation does not allow for the exception provided for by the second part of section 57(2)(a)(i) which reads:

“… Provided that, upon good cause shown by such person to the satisfaction of the Municipality, the appointment shall not lapse…”

18.5 This exception, which affords the Municipality discretion to condone non-compliance with this specific provision, brings estoppel into play. This Honourable Court’s conclusion in relation to estoppel, with reference to paragraph 30 of the judgment, was therefore misplaced and furthermore failed to take into account the invalidity of the amended section 57(2), considering the order declaring the relevant Act invalid.

19. The issue in each of the two cases[14] referred to by Counsel was not the interpretation of section 57(2)(a)(i) of the Act . Secondly, the facts of each of the two cases

differ radically from the present matter. In my view therefore, the circumstances under which the court expressed the views quoted by Counsel finds no application in the present case. The finding of this Court is that the two cases do not take the applicant’s case any further.

20. The following sentence from the bold and underlined quotation from Strickett case suggests that the case (Strickett) was decided on the law relating to section 57 before the amendment came into effect. In the present section 57(2) there is no mention of “… a reasonable time …’ but what is categorically stated is sixty days. It is this reasoning by the Court that cannot find application in casu. In relation to estoppel, I reiterate what I stated at para 30 of the judgment:

“ It does not appear that the doctrine of estoppel can be of any assistance to the applicant because “Estoppel may not be used

to make legal what would otherwise be illegal and cannot replace statutory requirements for the validity of contracts[15].

Fourth Ground : Interpretation of Section 139(2) of the Constitution.

21. Counsel for the applicant submitted that the twenty eight (28) days prescribed by section 139(2)(b)(i), considering section 4 of the Interpretation Act[16], lapsed on 29 May 2015. It is common cause that the Cabinet Member responsible for Local Government Affairs approved the intervention, purportedly in accordance with section 139(2)(b)(i), on 1 June 2015, in terms of a notice addressed to the 3rd respondent. This approval, as is apparent from the aforementioned, considering that it is common cause that the intervention “began” on 1 May 2015, was therefore outside the 28 day period as prescribed by section 139(2)(b)(i). One can also not lose sight of the fact that the applicant’s interpretation of section 139(2)(b), therefore that the said section

requires approval of the intervention by both the Minister and the NCOP, corresponds with the interpretation of the 1st and 3rd respondents, as set forth under paragraph 7.5 of their answering affidavit:

“7.5 The National Council of Provinces, which is equally supposed to approve the intervention, did approve it on 3 September 2015, by adopting the report prepared by its Select Committee…”

21.1 The applicant’s interpretation also corresponds with the remarks made in Development Local Government: A Case Study of South Africa[17], where the author remarked as follows regarding section 139(b) of the Constitution:

“Approval by the Minister and NCOP

Within 14 days after the assumption of responsibility has begun, a written notice of the intervention must be submitted to the national Minister responsible for local government, to the relevant provincial legislature and to the National Council of Province. The Minister must approve the assumption of responsibility within 28 days. The NCOP must approve the assumption of responsibility within 180 days.

The role of ministerial approval differs from the approval by the NCOP in that the latter plays a further reviewing role after interventions.[18] Not only must the NCOP assist the province in creating workable terms for the intervention as well as clarifying its role, but it must also protect local authorities from interventions that reach beyond what is constitutionally permitted.[19]

22. The Court analysed the interpretation of section 139(2)(b)(i) and (ii) as follows in its judgment.

[49] .. .The Minister as well as the NCOP must be given a chance to express their opinion on the desirability of the intervention. To allow only the Minister to decide, whilst totally disregarding the voice of the NCOP would be tantamount to reducing the NCOP to an insignificant institution. This cannot be the case. The NCOP is a powerful legislative house consisting of representatives of the people whose general responsibility is the wellbeing of the provinces.

[50] To adopt the interpretation which is postulated by the applicant would be tantamount to regarding the provisions of section 139(2)(b)(ii) as pro non scripto – as if it does not exist. Such an approach would have disastrous consequences for our democracy.

I repeat, the Minister and the NCOP must, each be given chance to approve/disapprove the intervention or to remain silent. This power should be exercised by each of these two institutions within 28 days (the Minister) and 180 days (the NCOP) calculated from the date of the intervention.

[51] In my view, if the Minister approves/disapproves or fails to take a decision within 28 days, that does not deprive the NCOP of its power to consider the matter. The NCOP’s power remains intact for 180 days. Practically, what it means is that if the Minister disapproves or fails to make a decision within 28 days he/she looses the power which is upon him/her in terms of section 139(2)(b)(i). It is the power of the Minister, not the intervention which ends. If I am wrong in this approach, it would mean that on the 29th day with effect from the date of intervention, the intervention should be terminated at the Municipality. Clearly, the latter

proposition is untenable because on the 29th day the NCOP still has 151(180-29) days to its credit. The NCOP cannot be divested of this power merely because the Minister has, within 28 days, took or failed to take a decision.

[52] …The effective date of “must end” therefore will be a day after 180 days (the emphasis is mine)

23. The Constitutional Court[20] stated that although the text of a statutory provision continues to be the starting point in the process of interpretation, the meaning assigned to the provision must have appropriate regard to context, even if the language is clear.[21] In this regard, the Constitutional Court proceeded to state that context includes other relevant provisions of the statute which may reveal the purpose of the interpreted section.[22] The aim being that the meaning assigned to the section must give effect to the purpose which the law-makers sought to achieve.

The Constitutional Court also added an important “but” in this regard and in further stating: “But the process of determining that purpose and giving effect to it should also ‘promote the spirit, purport and objects of the Bill of Rights.”[23]

24. The Supreme Court of Appeal [24] stated that: “When interpreting a statute one is not obliged, of course, to conjure up all manner of fanciful and remote hypothesis in order to test the implications of a construction which one is considering placing upon it. However, where readily conceivable and potentially realistic situations spring immediately to mind it is a salutary practice to test the proposed construction by applying it to such situations. If the exercise produces startling (as opposed to merely anomalous) results it may become clear that the proposed construction is not correct.”

25. The Supreme Court of Appeal [25] also recently stated that the “present state of the law”[26] regarding the process of interpretation involves: “… the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.”

The Court proceeded to state that irrespective of the nature of the document, consideration must be given to:

(a) the language used in the light of the ordinary rules of grammar and syntax;

(b) the context in which the provision appears;

(c) the apparent purpose to which it is directed; and

(d) the material known to those responsible for its production.

26. It is my view that to adopt the interpretation which is suggested by the applicant would lead to absurd consequences. Mr. Laubscher, for the respondents, submitted that for the applicant’s argument to be successful the applicant must convince a court to ignore and fail to read the word “or” between the provisions of section 139(2)(b)(i) and (ii), as well as to ignore one of the fundamental principles of the Constitution, i.e the autonomy of the different spheres of government .[27] I agree with Mr. Laubscher.

27. The fifth ground of appeal contains the argument that the “Court a quo erred and /or misdirected itself in failing to conclude that 6th and 7th respondent acted unlawfully and /or took an invalid decision by failing to comply with the applicant’s contract of employment

without approaching a competent Court to obtain a declaratory order insofar as the status of the applicant’s appointment.”

28. In support of his argument the applicant’s Counsel relied on several authorities and quoted at length from two cases.[28] He continued as follows:

In Mbashe Municipality v Dumezweni & Others the Labour Appeal Court considered, inter alia, the application of Section 54A(3) of the Systems Act, which basically reads identical to Section 56(2) of the Systems Act, the only destinction being that the former relates to Municipal Manager and the latter to Senior Managers. Landman JA, with Wagly JP and Ndlovu JJA concurring, held:

[22] Section 54A(1) of the MSA requires a Municipal Council to appoint a Municipal Manager as head of the administration of the Municipal Council (or an Acting Municipal Manager). The qualifications of a Municipal Manager are provided for in subsection (2) that reads:

‘A person appointed as municipal manager in terms of subsection (1) must at least have the skills, expertise, competencies and qualifications

as prescribed.’

And subsection (3) provides that:

‘A decision to appoint a person as municipal manager, and any contract concluded between the municipal council and that person in

consequence of the decision, is null and void if-

(a) the person appointed does not have the prescribed skills, expertise, competencies or qualifications; or

(b) the appointment was otherwise made in contravention of this Act.’

[23] I do not understand subsection (3) to mean that the appointment of a Municipal Manager may be treated conclusively by a municipality, or anybody else, as null and void without the intervention of a court. The principle of legality does not permit this. Contracts are binding but may be void or voidable.”

29. In Uthukela District Municipality v Khoza and Others, Snyman AJ held:

“For the sake of completeness, and even if it was true that the fixed term in the employment contract concluded between the applicant and the first respondent was in contravention of the Systems Act, it was simply not up to the applicant to by way of what is nothing more than self-help, seek to ‘abolish’ it. The fact is that the applicant should have sought to challenge the agreement by way of available legal avenues, such as, for example, applying to court to declare it invalid. With the agreement having been concluded, and then applied for almost two years, it simply not up to the applicant to adopt another resolution to abolish it. In Oudekraal Estates (Pty) v City of Cape Town and Others the Court said:

‘….But the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully. Is the permission that was granted by the Administrator simply to be disregarded as if it had never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator’s approval and all its consequences merely because it believed that they were invalid provided that its belief was correct? In our view, it was not. Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by court in proceedings for judicial review it exist in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern State would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.’

The conduct of the applicant, in casu, propagates the very approach the Court in Kirland Investments is critical of. The applicant

simply cannot, just because the applicant’s council considers the first respondent’s contract of employment to be invalid,

resolve to undo it. The facts of the current matter actually serve as an excellent illustration why this kind of conduct should be discouraged in the strongest possible terms. What has happened in casu is that a long serving and senior employee in the applicant occupying a senior and responsible position, in a department supplying an important public service, is simply bounced out of his position, leaving it de facto vacant, just because councilors, in the face of clear opinion to the contrary, consider the employment contract to be invalid. It is for this kind of reason why these kind of decisions relating to legality of contracts, especially contracts of employment, must be left up to the Courts to decide. As a result, whether or not the first respondent’s contract of employment was invalid, simply matters not. It was just not up the council to in effect declare it invalid and abolish it by way of resolution. In doing this, the applicant thus still effected a dismissal of the first respondent.”

30. It is my respectful view that the context in which the Courts referred to (by counsel) made all the quoted remarks are entirely different from the present. With the present scenario, the Act specifically states what the results would be with the applicant if within sixty days he has not submitted a performance agreement. Section 57(2)(a)(i) of the Systems Act stipulates that “….the appointment lapses…” The sixth and the seventh respondents never took any act, decision or step to dismiss the applicant. All that was done was to inform him about the consequences of his inaction as envisaged in section 57(2)(a)(i). This act of informing him by the Municipality, does not, in my view, amount to dismissal from work or termination of service. It would be absurd if the Municipality would have approached a court of law to “inform” the applicant about the legal position. Courts of law are there to adjudicate disputes between parties. In casu, there is no dispute between the parties about the actual meaning of Section 57(2)(a)(i).

Condonation

31. The application for leave to appeal is accompanied by the application for condonation. The applicant provided the following facts in support of his application: His attorney in this application is Mr. Scholtz who is assisted by his wife. Mrs Scholtz has a right of appearance in the High Court. The reasons why he opted for an attorney to prepare and argue the matter in the High Court is lack of funds. Both Mr. and Mrs Scholtz were in Thailand from 23 June 2016 and only returned to their offices on Tuesday, 5 July 2016. Mrs Scholtz, only became aware of the order and judgment, which is the subject of the application for leave to appeal, on the latter date. The applicant was contacted on the very same day by Mrs. Annelize Jansen from his attorneys, who advised him of the availability of the judgment and in order to arrange a consultation with Mr. Scholtz to discuss the outcome of this matter. Mrs. Jansen wanted to arrange a consultation for the very same week as both Mr. and Mrs. Scholz were attending the National Ringball Championship from 9 until 17 July 2016 and therefore unavailable during that period.

32. Unfortunately, the applicant could not consult with Mr. Scholtz during the remainder of the aforementioned week, 5 - 8 July 2016, as a result of the following: He resides in Welkom, whilst his attorneys are situated in Potchefstroom; He has to travel to his attorneys’ offices in Potchefstroom in order to consult with them which involves substantial travelling costs.

Unfortunately, he was not in a position to travel to the attorneys during the aforementioned period as a result of lack of funds, which is a direct result of the termination of his employment with the 6th respondent. He had not been able to source any other income since the termination of his services. He had to make plans to obtain transport to Potchefstroom which took some time. He was only in a position to consult with Mr. Scholtz on Tuesday,19 July 2016, considering his financial difficulties and his unavailability, on that date he informed Mr. Scholtz of the fact that he wanted them to proceed with his application for leave to appeal, but that his decision is dependent on financial considerations. He informed Mr. Scholtz further that he would ascertain as to whether his family would be able to assist him financially to bring the application for leave to appeal, thereafter he would provide him with instructions.

33. He subsequently obtained an undertaking for financial assistance and instructed Mr. Scholtz on 26 July 2016 to proceed with his application for leave to appeal. Mr. Scholtz undertook to attend to same as soon as possible, but confirmed that it would take him a few days to prepare his application considering that:

33.1 He was facing a backlog of work as a result of his absence from the offices for the period from 23 June 2016 to 4 July 2016 and 9 to 17 July 2016;

33.2 His involvement in another complicated disciplinary enquiry set down for 27 July 2016 in Sandton involving one of his clients and the Premier of the Gauteng Province. He apparently obtained instructions in that matter on short notice;

33.3 The applicant’s application for leave to appeal, in particular the grounds therefor, was furthermore complicated as a result of the judgment and order granted in another High Court matter which directly affected his matter, the matter of South African Municipal Workers Union v The Minister of Co-Operative and Traditional Affairs & Other [2016] JOL 35538(GP).

34. In considering the reasons giving rise to the delay, I have to take into account, amongst others, the degree of lateness as well as whether there are any reasonable prospects of success on appeal. The applicant must show good cause for the delay. I have already expressed my views on the prospects of success on appeal based on the five grounds which were raised. The applicant has provided sufficient reasons for the delay of five days but I am of the view that the application for condonation must fail since there are no reasonable prospects of success on appeal on the merits.

35. Consequently, the application for leave to appeal and condonation is dismissed with costs.

______________________________

SAMKELO GURA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

DATE OF HEARING : 03 FEBRUARY 2017

DATE OF JUDGMENT : 15 JUNE 2017

COUNSEL FOR APPLICANT : MR. W. P SCHOLTZ

COUNSEL FOR THE RESPONDENT : ADV. LAUBSCHER

ATTORNEYS:

FOR THE APPLICANT: Scholtz Attorneys

C/O Van Rooyen Tlhapi Wessels

9 Proctor Avenue,

MAHIKENG

2745

FOR THE 1ST TO 3RD RESPONDENT: The State Attorney

Cnr Sekame Road & Dr. James Moroka

1st Floor, East Gallery

Megacity Complex

Mahikeng

FOR THE 6TH AND 7TH RESPONDENT: Lizel Venter Attorneys

C/O Smit Stanton Attorneys

29 Warren Street

[1] Act 32 of 2000

[2] Act 7 of 2011

[3] Government Gazette No.34433 dated 5 July 2011

[4] In terms of the Constitution of the Republic of South Africa. 1996

[5] [2016] JOL 35538 (GP).

[6] Van Heerden v Cronwright 1985(2) SA 342(T); Normkow Administrators (Pty) Ltd v Fedsure Health Medical Scheme 2005 (1) SA 80 (W)

[7] Harms: LAWSA Vol.4 para 414

[8] The Law of South Africa, 2nd Ed, Vol 3, part 1, para 360 page 216

[9] Act 10 of 2013

[10] (2003) 2 BLL R 103(CC)

[11] Supra, note 5

[12] South African Municipal Workers’ Union v Minister of Co-Operative Governance and Traditional Affairs (CCT54/16) [2017]

ZACC 7(9 March 2017).

[13] (CCT 36(99) [1999] ZACC14; 1999(12) BCLR 1438(4 November 1999)

[14] Maphumo Local Municipality v Mhlongo and Others (D1198/13)[2016] ZALCD 2(20 January 2016); Strickett v Matjhabeng Local

Municipality (4583/2010) [2011] ZAFSHC (18 August 2011)

[15] Harms Amler’s Precedents on Pleadings Lexis Nexis 8th Ed at 186

[16] Act 33 of 1957

[17] J W. De Visser, INTERSENTIA, page 189

[18] Section 139(2)(c) Constitution

[19] See also Nkisimane and others v Stamtam Insurance Co Ltd 1978(2) SA 430 (AD) at 433H-434B; Magalakwena Local Municipality v Provincial

Executive Council, Limpopo and others (35248/14) [2014] ZAGPPHC 400; et al

[20] City of Tshwane Metropolitan Municipality v Link Africa(Pty) Ltd and Others 2015 (6) SA 440 (CC) at par 33.

[20] City of Tshwane Metropolitan Municipality v Link Africa(Pty) Ltd and Others 2015

(6) SA 440 (CC) at par 33.

[21] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at par 90.

[22] Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007(6) SA 199 (CC) at par 53.

[23] Section 39(2) of the Constitution states that:” When interpreting any legislation, and when developing the common law or

customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

[24] Sefalana Employees Benefits Organisation v Haslam [2000] ZASCA 1; 2000 (2) SA 415 (SCA) at paragraph 6.

[25] In the matter of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) in paragraph 17 to 26. Also see City of Tshwane v Marius Blom and GC Germishuizen Incorporated and another [2013] 3 All SA 481 (SCA)

[26] At paragraph 18.

[27] Section 40(1) of the Constitution and Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC) at paragraph 288; City of Johannesburg Metropolitan v Gauteng Development Tribunal and Others 2010 (9) BCLR 859 ([2010] ZACC 11; 2010(6) SA 182) par 59; Tronox KZN Sands (Pty) Ltd v Kwazulu Natal Planning and Development Appeal Tribunal and Others 2016 (4) BCLR 469(CC) at par 26.

[28] Mbashe Municipality v Dumezweni & Others (PA4/14) [2015] ZALAC 18 (19 May 2015);Uthukela District Municipality v Khoza and Others (D735/2013)[2015] ZALCD 19 (20 March 2015)