Mndebele v Govan Mbeki Municipality and Others (775/2021) [2021] ZAMPMHC 9 (23 March 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

22 MARCH 2021

CASE NO: 775/2021

In the matter between:

SIMON FELANI MNDEBELE

Applicant

and

GOVAN MBEKI MUNICIPALITY

First Respondent

MPHOKE MAGANE

Second Respondent

JOY LEBOGANG RAPHIRI N.O.

Third Respondent

JUDGMENT

BRAUCKMANN AJ

INTRODUCTION

[1] In this urgent application the applicant approaches the court for relief against his employer, the Govan Mbeki Municipality (“GB”). Applicant is the Municipal Manager of GB. He was appointed in terms of a fixed term contract for a period of four years on 01 October 2018. He was suspended on 04 September 2020, and served with a notice to appear at a disciplinary hearing on 16th October 2020. It is common cause that no enquiry by GB’s Disciplinary Board was held as provided for in the with Local Government: Municipal Regulations on Financial Misconduct Procedures and Criminal Proceedings dated 30 May 2014 (“the 2014 regulations”).

THE PLEADINGS AND RELIEF SOUGHT

[2] In terms of the amended notice of motion served on Monday 15 March 2021, the applicant seeks the following relief:

“1. Declaring the disciplinary proceedings instituted against the Applicant on 16 October 2020 in terms of the Local Government: Disciplinary Regulations for Senior Managers 2010 unlawful and null and void;

2. Interdicting and restraining the First Respondent from continuing with the disciplinary proceedings instituted against the Applicant on 16 October 2020 until the First Respondent complies with Local Government: Municipal Regulations on Financial Misconduct Procedures and Criminal Proceedings dated 30 May 2014 (“the 2014 regulations”);

3. Declaring the Appointment of the Second Respondent as the presiding officer of the disciplinary hearing to be invalid, unlawful and null and void;

4. Declaring that the First Respondent is in breach of the contract of employment entered into between the Applicant and the First Respondent on 5 October 2018;

5. An order for cost against the Respondents, in the event of opposition;”

[3] Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa[1], and not the substantive merits of the case.

[4] In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court. If however the pleadings, properly interpreted,

establish that the applicant is asserting a claim under the Labour Relations Act of 1995 (“LRA”), one that is to be

determined exclusively by the Labour Court, the High Court would lack jurisdiction. [2] More about jurisdiction later in the judgment.

LITIGATION HISTORY

[5] This matter has an interesting, though sad history, both in terms of the disciplinary proceedings and the litigation between the parties. I am of the view that the parties’ legal representatives could have advised their clients to follow a less confrontational process and thereby saved their clients and the public vast amounts of money already wasted in legal costs. The cost award in this application will reflect the court’s disapproval.

[6] After various postponements of the disciplinary enquiry against the applicant, the applicant was asked to plead to the charges on 7 December 2020, whilst he was not represented by his counsel, Adv Dlamini S.C. On that day Adv Dlamini, who was indisposed due to illness, could not represent the applicant. GB’s attorneys, correctly so, does not deny it.

[7] The matter was then postponed a couple of times due to various reasons, but of import is that GB, through the third respondent, unilaterally and without consulting the applicant’s legal team, served a notice of set down of the hearing on applicant for 15 and 16 February 2021. Applicant’s legal team was not available due to the extremely short notice. To date of service of the set down on applicant, the parties agreed on dates for the continuance of the hearing.

[8] GB, the second and third respondents were fully aware of the fact that the applicant was represented by a senior counsel and an attorney. Despite being aware thereof, and having been made aware of the fact that a letter from GB with possible dates for the hearing to proceed did not reach applicant’s attorneys, the second respondent (“the presiding officer”) dismissed an application for a postponement on 15 February 2021, and compelled the applicant to proceed with the hearing after he was afforded 30 minutes to have his legal representatives attend the hearing in Secunda. Both applicant’s legal representatives are from Johannesburg. The hearing proceeded despite the objections by applicant. Needless to say, the applicant’s representatives was not even properly prepared.

[9] Applicant raised a point in limine to the effect that the procedure that GB have followed was fatally flawed in that it utilized the 2010 Regulations instead of the 2014 Regulations when it was common cause that the allegations levelled against the Applicant by the GB are based on events that happened in 2019, a date falling after the commencement of the 2014 Regulations on 30 May 2014, and the charges all amount to allegations of financial misconduct. The objection was dismissed by the second respondent.

[10] The hearing was scheduled to proceed on the 25th February 2021, but applicant approached the Labour Court for, and obtained an interdict against the respondents not to proceed with the disciplinary enquiry until the Labour Court application had been finalized. The application was scheduled to be heard on 5th March 2021. On that day the Labour Court dismissed the application, as I am informed, for lack of jurisdiction.

[11] The Court stood the matter don until 10 March 2021. On 10 March 2021 the court did not have all the affidavits, and the papers were not indexed or paginated. The applicant simply failed to comply with the practice directives of this division. To exacerbate their problems, ther was no real urgency, as GB had not fixed a date for the disciplinary enquiry to proceed yet. The matter was struck off Applicant ordered to pay the costs.

[12] Lo and behold, but on 12 March 2021 GB without consulting applicant or his legal representatives delivered a notice of the set down of the disciplinary enquiry for the 16th and 17th of March 2021. The notice of set down was served on applicant by the Sheriff despite the fact that the First and Third Respondents knew that applicant is represented in the proceedings by his current lawyers.

[13] Applicant notified his legal representatives who in turn attempted to call the Third Respondent to enquire about the arbitrary set down of the matter. All attempts to do so were unsuccessful; as it appears that the Third Respondent's cellular phone was off. A letter was dispatched by applicant’s attorneys to GB by email through the Third Respondent requesting GB to remove and/or retract the notice of set down as it has been served with short notice to the parties concerned. It also recorded that the Third Respondent and GB’s conduct “nothing short of being malicious”. Also that in the event that GB persists with the set down for 16 March 2021 the applicant would have no alternative but to approach the urgent court in order to interdict the disciplinary process. No undertaking was received.

[14] On Tuesday 16 March 2021 the applicant was back in the urgent Court. I found the matter to be sufficiently urgent and enrolled it accordingly. The following order was then made:

“1. the First, Second and Third Respondents are interdicted and restrained from continuing with the disciplinary proceedings instituted against the Applicant on 16 October 2020 and set down for 16 and 17 MARCH 2021 at 09h00 pending the final adjudication of the relief sought by applicant in prayers 1 to 6 of his “Amended Notice of Motion” dated 15th MARCH 2021 (“the main application”) on 19 March 2021;

2. The applicant’s attorneys must index and paginate the Court file before close business 17 March 2021;

3. The costs of 16 March 2021 are reserved.”

[15] This court postponed the matter to Friday 19 March 2021for argument, and this is the court’s judgment in the main application.

THE DISCIPLINARY CHARGES AGAINST APPLICANT

[16] The applicant was charged with nine counts of alleged misconduct. It is not disputed that all the charges allege that applicant is guilty of misconduct of a financial nature. The court have read the charge sheet and is satisfied that each charge contains allegations of financial misconduct. The averment by applicant was not disputed by the respondents.

THE OUDEKRAAL-ARGUMENT

[17] The Applicant laments that the Second Respondent (“chairperson”) made a ruling dismissing his point in limine that the disciplinary process was null and void for non-compliance with the 2014 regulations. Based on this dismissal GB now alleges

that this Court has no jurisdiction to entertain the lawfulness argument. Here the Oudekraal- principle[3] enters the fray according to GB. That decision still stands, says GB , and unless set aside on review this Court is bound by it until applicant applies to have it reviewed and set aside. No review serves before this Court, and therefore says GB; this Court cannot even entertain the jurisdiction point.

[18] The Applicant alleges that the Municipal Council’s decision to institute disciplinary action against the Applicant employee is unlawful, invalid and null and void since it was instituted in terms of the wrong regulations (i.e. 2010 instead of 2014 regulations).

[19] The ruling by second respondent does not constitute an administrative action[4]. The Labour Appeal Court in PSA obo De Bruyn v Minister of Safety and Security[5] "held that although there may conceivably still be employer acts which are almost indistinguishable from administrative acts ” . . . . . . it does not follow that because the remedy of judicial review may still exist for public servants that the Labour Court will entertain an application to review 'any act performed by the State in its capacity as employer' as a matter of course." Just as a refusal of a postponement by a presiding officer at a disciplinary enquiry will not be binding on the court, the dismissal of the point in limine by the second respondent will also not bind this court.

THE REGULATIONS APPLICABLE TO THE MISCONDUCT

[21] GB and applicant concluded a written employment agreement (“the agreement”) for a fixed term of four years. In terms of clause 19 of the agreement “issues relating to the Disciplinary Code and Procedures of Senior Managers will be dealt with in line with the Local Government Disciplinary Regulations for Senior Managers, promulgated as Notice no.344, Government Gazette No. 34213 dated 21 April 2011.” The Court will refer to these regulations as the 2010 regulations. The 2010 regulations were made in terms of the Municipal Systems Act.

[22] The agreement contains a non-variation clause (clause 21.1) that is subject to variations in the general conditions of service as amended from time to time by means of Council Resolutions or regulations and/or guidelines in terms of the Municipal Systems Act, 2000 or other relevant legislation (clause 21.2). The “other relevant legislation” must include the Municipal Finance Management Act (“the MFMA”) as well as regulations in terms of that act.

[23] In terms of section 175 of the MFMA the procedure that was to be followed by the GB in bringing the charges against applicant provides that:

“175 Regulations on financial misconduct procedures and criminal proceedings

(1) The Minister, acting with the concurrence of the Cabinet member responsible for local government, may make regulations prescribing-

(a) the manner, form and circumstances in which allegations and disciplinary and criminal charges of financial misconduct must be reported to the National Treasury, the MEC for local government in the province and the Auditor-General, including-

(i). particulars of the alleged financial misconduct; and

(ii). steps taken in connection with such financial misconduct;

(b). matters relating to internal investigations by municipalities and municipal entities of allegations of financial misconduct;

(c). the circumstances in which the National Treasury or the MEC for local government in the province may direct that disciplinary steps be taken or criminal charges be laid against a person for financial misconduct;

(d). criteria for the composition and functioning of a disciplinary board which hears a charge of financial misconduct;

(e). the circumstances in which the findings of a disciplinary board and any sanctions imposed by the board must be reported to the National Treasury, the MEC for local government in the province and the Auditor-General; and

(f). any other matters to the extent necessary to enforce the provisions of this Act.”

[24] Section 175 above empowers the Minister to make regulations prescribing the procedural steps to be taken by the GB in connection with complaints of financial misconduct against Managers. On 30 May 2014 The Minister enacted the 2014 regulations.

[25]

Section 171 of the MFMA defines financial misconduct as follows:

“[171] Financial misconduct by municipal officials

(1). The accounting officer of a municipality commits an act of financial misconduct if that accounting officer deliberately or negligently-

(a) contravenes a provision of this Act;

(b) fails to comply with a duty imposed by a provision of this Act on the accounting officer of a municipality;

(c) makes or permits, or instructs another official of the municipality to make, an unauthorised, irregular or fruitless and wasteful expenditure; or

(d) provides incorrect or misleading information in any document which in terms of a requirement of this Act must be-

(i). submitted to the mayor or the council of the municipality, or to the Auditor-General, the National Treasury or other organ of state; or

(ii) made public.”

[26] Sub-section 4(1) of the MFMA in turn provides that a municipality must investigate allegations of financial misconduct against the accounting officer, the chief financial officer, a senior manager or other official of the municipality unless those allegations are frivolous, vexatious, speculative or obviously unfounded, and if the investigation warrants such a step, institute disciplinary proceedings against the accounting officer, chief financial officer or that senior manager or other official in accordance with systems and procedures referred to in section 67 of the Municipal Systems Act, read with Schedule 2 of that Act.

[27] During 2014 the Minister of Finance, acting in terms of Sections 168 and 175 of the Local Government: Municipal Finance Management Act enacted the 2014 Regulations (“the 2014 regulations”).

[28] In regulation 1 of the 2014 regulations ‘financial misconduct’ is inter-alia defined to mean any act of financial misconduct defined in Section 171 of the Municipal Finance Management Act, and regulation 2 of the 2014 regulations provide that chapter 2 dealing with Financial Misconduct Procedures applies to alleged financial misconduct.

[29] In terms of regulation 3(1) (a) of the 2014 regulations ‘any person must report an allegation of financial misconduct against - the accounting officer to the municipal council, the provincial and national treasury.’

[30] Regulation 4 provides for the establishment of the disciplinary board and its functions while regulation 5 of the 2014 Regulations provides that:

“[1] On receiving a report in terms of regulation 3(1), if the municipal council……is satisfied that there is reasonable cause to believe that an act of financial misconduct has been committed, it must within seven days refer the matter to the disciplinary board to conduct preliminary investigation into the allegation as envisaged in terms of Section 171(4) (a) of the Municipal Finance Management Act.” [Own emphasis]

[31] A disciplinary board must therefore first conduct a preliminary investigation to determine whether or not the allegation is founded and then make a recommendation to the council as to whether sufficient grounds exist to warrant a “full investigation into the allegation.” The disciplinary board was established by GB, and members of the board have been appointed. The board was established in terms of subsection 4 (1)of the Municipal Regulations on Financial Misconduct Procedures and Criminal Proceedings published under Government Notice No. 475 in Government Gazette No. 37682, dated 30th May 2014[6].

APPLICANT’S SUBMISSIONS

[32] Applicant submits that GB complied with regulation 4(1) of the 2014 regulations in that it established a disciplinary board in April 2019 as appears from Annexure SM 15 to the founding affidavit. The establishment of the board is also an indication that GB implemented the 2014 regulations.

[33] From a reading of the formulation of the charges against the applicant it is apparent that the charges in substance amounts financial misconduct charges which arose from conduct which allegedly happened after the commencement of the 2014 Regulations on 30 May 2014. From the above, so applicant’s argument develops, it follows that the charges against him had to be brought in terms of the 2014 regulations, and GB was obliged to comply with the provisions of the 2014 regulations. It follows that a failure to do so renders the current disciplinary process embarked upon by GB against applicant fatally flawed and unlawful.

[34] From the opposing affidavit/s filed by GB it appears to be common cause that:

[34.1] there was no disciplinary investigation by the disciplinary board as prescribed in regulations 5(1) and (2) of the 2014 regulations;

[34.2] there was no recommendation by the disciplinary board to the council as prescribed in Regulations 5(2) of the 2014 regulations;

[34.3] there was no determination envisaged in regulation 5(3) whether or not the allegation was frivolous, vexatious, speculative or obviously unfounded was never made by the disciplinary board.

[35] According to the applicant the Second Respondent arbitrarily dismissed his point in limine on this aspect without even hearing argument from him and/or his legal representatives. Something that struck the Court was the way in which GB, so represented by second and third respondent treated the applicant and his legal representatives. It seems as if old school collegiality is a foreign concept to those representing GB. I say so because of how the hearing dates were dictated to the applicant and his team. It is true that disciplinary procedures may be set down with 48 hours’ notice to the employee. If however the employer allowed legal representation to the employee, the dates should be arranged with them. The applicant, with knowledge of GB employed a senior counsel. It is common knowledge that an advocate with such status is normally booked in advance. To set matters down at a whim and expect the senior counsel to “adapt or die”, is unfair and uncollegial.

RESPONDENTS’ SUBMISSIONS

[36] GB do not agree with the view as set out above. Having regard to the reasons or grounds discussed in the preceding paragraphs, it submits that this Court does not have the necessary jurisdiction to adjudicate upon the dispute, let alone interdicting the proceedings on the basis alleged by the applicant. According to GB such is simply a non-starter, having regard to the mentioned provisions of the contract of employment, including clauses 19 and 19.1 thereof.

[37] Clause 19.1 of the agreement to which the Court referred earlier, according to GB “reveals that the relief sought by the applicant that he be disciplined in terms of “the 2014 Regulations' is unsustainable and in fact spurious.” The clause, according to GB expressly requires that the applicant be disciplined in terms of “the 2010 Regulations” dated 21 April 2011. I have quoted the clause above.

[38] In the circumstances, so GB argues, unless clause 19.1 is varied in writing and signed for by the parties to instead refer to in “the 2014 Regulations'” as required by clause 21 (the non-variation clause referred to above, relief sought by the applicant is incompetent and/or a non-starter, when regard is had to the provisions of the agreement.

DOES THE 2014 REGULATIONS APPLY TO THE APPLICANT’S AGREEMENT?

[39] The Court is of the view that clause 19.2 of the agreement. From the construction of the clause it is apparent that the 2010 and 2014 regulations apply to the agreement as well as other regulations in terms of relevant legislation. Once the “relevant legislation” determines different condition of employment it becomes, by reference, incorporated in the agreement. The parties do not have to reduce it to writing and sign the “new” terms and conditions.

[40] This application centres on the applicable legislation where it is alleged that the incumbent had committed financial misconduct and disciplinary steps are instituted after the coming into effect of the 2014 Regulations, and the only issue for determination is whether the applicant should have been charged in terms of the 2014 regulations or the 2010 Regulations. If he was subject to the 2014 regulations the question begs whether GB’s failure to follow the 2014 procedures before charging him as aforesaid rendered the disciplinary proceedings unlawful entitling the Applicant to an order in terms of the Notice of Motion.

[41] This question was dealt with in a well written and ably argued judgment by Molitsoane J in Molala v Metsimaholo Local Municipality and Others[7]. In the matter the Municipal Manager of the Mestsimaholo Local Municipality before the disciplinary proceedings commenced raised a preliminary point to the effect that the disciplinary proceedings had not been properly sanctioned. The contention by the Applicant is that the charges against him are in the nature of financial misconduct and the proceedings should thus have been dealt with in terms of the 2014 Regulations. This contention was also rejected by the chairperson of the disciplinary tribunal hence that matter ultimately found its way to the court.

[42] The applicant in the Molala – case raised exactly the same arguments regarding the applicability of the 2104 regulations to his employment contract. We do not have the terms of Mr Molala’s employment agreement, but from the judgment and reasoning by the judge the terms are not relevant.

[43] After an overview of the law regarding the retrospective operation of acts (and regulations, the judge reached the following conclusion:

“It is our common law principle that the Legislature does not promulgate and make meaningless, invalid or purposeless legislation. The 2014 Regulations could not have been promulgated without a purpose. Clearly as indicated above the 2014 Regulations deal with the procedure to be followed in dealing with allegations of financial

misconduct and by necessary implication apply prospectively. In my view, in answer to the question I raised in paragraph [22] (1)

above, Regulation 20 supports the view that any allegations of misconduct whereof the investigation commenced after the 30th May 2014 or the allegations thereof arose after the said date, falls to be dealt with in terms of the 2014 Regulations.”[8] [Own emphasis]

[44] Section 175 of the MFMA required of the Minister to make regulations prescribing, inter alia, the steps to be taken in connection with financial misconduct which includes internal investigations and the criteria for the composition and functioning of a disciplinary board which hears a charge of financial misconduct. The legislature could never have promulgated the 2014 Regulations in line with the provisions of section 175 and not have intended such Regulations to apply in relevant cases. [9]

[45] I agree with the judgment and the finding by the court in the Molala-matter. The current matter is virtually on all fours with the Molala-mater. The only difference is the fact that the applicant was made to plead to the charges on 7 December 2020 in the absence of his legal representatives. Thereafter he was forced to proceed with the hearing when the second respondent refused to postpone the hearing and afforded him 30 minutes to arrange for his legal representatives to assist him in the proceedings. It is very rich coming from a party who unreasonably force an employee to proceed with pleading to charges in the absence of his representatives and thereafter, knowing full well that applicant’s legal team is not available on the unilaterally imposed date, to refuse a postponement under circumstances where the applicant’s legal representatives are not available, nor suitably prepared to represent the applicant competently. There was constant communication with the second respondent prior to the proceedings that were held on 15 February 2021.

[46] For the reasons in the Metsimaole – judgment the ruling by the second respondent on the point in limine raised by applicant, although belatedly is wrong. Not only was the second respondent unfair towards the applicant by forcing him to participate in the proceedings without his counsel, but also in deciding that the applicant, by his participation in the proceeding waived his right to object to the nature and form thereof. The applicant never participated voluntarily when he was forced to plead and participate. So too when his attorney had to rush to Secunda on 15 February 2021.

[47] A further consideration is the fact that GB have implemented the 2014 regulations by establishing a disciplinary board in terms of the 2014 regulations. It will be non-sensical for the Minister to make regulations and thereafter afford the parties a choice of procedures. There was a specific reason for the regulations. Amongst other I understand it is a measure to prevent frivolous and vexatious complaints against senior managers to be converted into hearings with far reaching and damaging results to the dignity and reputation of such managers.

LACK OF JURISDICTION

[48] The respondents, to a large extent belatedly, also contended that this court does not have jurisdiction to hear the matter. GB states that in terms of clause 24.3 of the agreement the applicant consented to the jurisdiction of the CCMA in respect of disputes arising from the agreement, and that he should have invoked the rules of the CCMA to protect his interests, and in consequence “this Court does not have the necessary jurisdiction and the applicant has no right to approach it, unless and until he would have first approached the CCMA; even after approaching the CCMA and the CCMA‘s decision does not satisfy him, his next forum will not be this Court, but the Labour Court.”[10]

[49] I do not agree with these submissions. The only point for decision is in this matter is a point of law and the Court is in the best position to decide that issue. The CCMA cannot provide the applicant with the relief he seeks. In terms of section 34 of the constitution the applicant has the right to have the dispute resolved by application of the law in a fair public hearing before a court. The applicant’s right not to have his dignity and reputation impaired (constitutional rights) also comes into the frame. The power of a commissioner to issue a declaratory order does not equate with jurisdiction to declare acts to be unlawful, and a tribunal performing an administrative function which does not have inherent powers may make a declaratory order only on matters it is permitted to preside over[11].

[50] Jurisdiction is determined on the basis of the pleadings and not the substantive merits of the case. In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant

has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish

what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court.[12]

[44] In respect of enforcement of both contractual and constitutional rights the High Courts retain their original jurisdiction assigned to them by the Constitution.

[51] The argument with regard to jurisdiction is that this court does not have jurisdiction to hear the matter as the applicant seeks a labour law remedy, which only the Labour Court has the exclusive jurisdiction to determine in terms of the Labour Relations Act 95 of 1995 (LRA).This assertion is cannot be correct. The applicant’s challenge the respondents ‘conduct as being in violation of the Constitution confer concurrent jurisdiction on this court. See in this regard Makhanya v University of Zululand, where it was held that the High Court and the Labour Court both have the power to enforce constitutional rights as far as their infringement arises from employment[13].

[52] The issue of unlawfulness of the procedure currently taking place in the disciplinary hearing is in dispute. That is mainly a question of law, there are no factual disputes to be decided, and there for the rule in Plascon – Evans does not find application. The application does not seek to enforce any rights or remedies provided for in the Labour Relations Act. Applicant seeks the Court’s assistance to protect himself from a breach of his contract of employment and unlawful conduct by GB and its appointees. The application does not seek to adjudicate a labour dispute or conduct as envisaged in Chapter VIII of the Labour Relations Act of 1995. The Applicant want the Court to interdict the perpetuation of the unlawfulness of the procedure currently under way in the disciplinary

enquiry before the second respondent. The CCMA has no such jurisdiction as asserted by the First Respondent. It is my finding that this court has jurisdiction to adjudicate an interdictory relief where unlawfulness is an issue.

[53] Urgent applications to “review and set aside” preliminary rulings made during the course of a disciplinary inquiry or to challenge the validity of the institution of the proceedings ought to be discouraged[14]. I am however, taking into account the lack of procedural fairness by the first and second respondents as well as the failure to follow the prescribed procedures in terms of the 2014 regulations, convinced that the applicant have shown that there are exceptional circumstances which justifies the intervention in incomplete disciplinary proceedings by this Court.

[54] GB failed to challenge the court’s jurisdiction seriously, and only, as an after-thought dealt with the “consent to the CCMA jurisdiction and the employment agreement’s terms in a supplementary affidavit, which was, in the court’s view opportunistically filed after the applicant’s “supplementary founding affidavit” was served on 15 March 2021. The applicant’s affidavit contained only information pertaining to the “new” urgency that arose when the GB served a notice of set down on the applicant on Friday, 12 March 2021, and refused to withdraw it despite a reasonable demand thereto by applicant’s attorneys on the same day. The supplementary opposing affidavit dealt with “new” matters and not with GB’s unreasonable short notice or refusal to withdraw the notice. It attempted to deal with new defences to jurisdiction.

[55] The purpose of pleading being to clarify the issues between the parties, the allegation in the plea must be of sufficient precision to enable the plaintiff to know what the case it has to meet is. The defendants cannot therefore, rely upon a defence which is not pleaded, or which she or he is not allowed to incorporate into the plea by an amendment. A plea cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvas another[15].

[56] “A defence must be pleaded as well as proof, for the courts to sit and try the issue raised by the pleadings. A defendant, who has missed pleading a defence, must raise a defence formally and have it placed on record. If no defence is raised, as a general rule, it cannot be adjudicated upon. The defendants by filing a plea of bare denial are regarded to have joined issues on the merits, requiring the plaintiff to prove its cause of action.[16]”

CLEAR RIGHT

[56] The applicant has a legitimate expectation to be treated fairly and a right to the procedures prescribed by the law when GB envisages to institute disciplinary procedures against him based on allegations of financial misconduct. That procedure is clearly set out in the 2014 regulations. The applicant is legally entitled to insist on compliance with the procedures. GB’s failure to follow the procedures is not only a breach of the agreement, but also unlawful as it violates the regulations.

IRREPERABLE HARM

[57] The Applicant has established that he stood to suffer irreparable harm if the proceedings were allowed to continue in view of the fact he is entitled to lawful conduct in the run-up and during the disciplinary enquiry. His dignity and reputation is also under threat as a result of the proceedings without the necessary enquiries having been conducted before the hearing was mandated. As discussed above, the court is also of the view that GB and the second respondent disregarded the applicant’s right to a fair hearing before the disciplinary committee, and even before the hearing.

ALTERNATIVE REMEDY

[58] The Court is satisfied that the Applicant has no alternative remedy than to approach this court for an interdict. The attack by the respondents is aimed at on the procedure, and goes to the heart of the issue of lawfulness. The applicant has no hope to have lawful procedure applied to his case or to have a fair hearing before the current committee. The first and second respondents’ conduct during the course of the hearing speaks volumes in this regard. The initial investigations were not even conducted.

[59] The alternative remedy of proving in the CCMA that the conduct of the respondents against applicant constituted unfair an labour practice is not an adequate alternative remedy as the charges against the employees involved allegations of misconduct, which meant that the prejudice they suffered involved not only financial loss but also issues of dignity and integrity[17]

[60] I am therefore of the view that the applicant have made out a case for the relief sought in his notice of motion. The applicant only sought costs in the event of opposition. First and second respondents elected to oppose the application, and filed lengthy opposing affidavits. The third respondent filed a notice abiding by the Court’s decision. I am of the view that costs should follow the event, but not on a punitive scale as prayed. The following order is made:

[60.1] the disciplinary proceedings instituted against the Applicant on 16 October 2020 in terms of the Local Government: Disciplinary Regulations for Senior Managers 2010 (“the 2010 Regulations”) is declared unlawful, null and void;

[60.2] the First Respondent is interdicted and restrained from continuing with the disciplinary proceedings instituted against the Applicant on 16 October 2020 until the First Respondent complies with Local Government: Municipal Regulations on Financial Misconduct Procedures and Criminal Proceedings dated 30 May 2014 (“the 2014 regulations”);

[60.3] the Appointment of the Second Respondent as the presiding officer of the disciplinary hearing is declared be invalid, unlawful and null

and void;

[60.4] the First Respondent is in breach of the contract of employment entered into between the Applicant and the First Respondent on 5 October 2018;

[60.5] first and second respondents are ordered to pay the applicant’s costs, jointly and severally, the one to pay, the other to be absolved, including the cost consequent on employing senior counsel. The costs includes the reserved costs of 16 March 2021.

HF BRAUCKMANN

ACTING JUDGE OF THE HIGH COURT

REPRESENTATIVE FOR THE APPLICANT: ADV DLAMINI SC

INSTRUCTED BY: NGENGEBULE ATTORNEYS – luvuyo@ngengebule.co.za

REPRESENTATIVE FOR THE FIRST RESPONDENT: ADV SHOKOANE SC

INSTRUCTED BY: RAPHIRI ATTORNEYS – info@raphiriattorneys.co.za

REPRESENTATIVE FOR THE SECOND RESPONDENT: matsie@maganeattorneys.co.za

DATE OF HEARING: 19 March 2021

DATE OF JUDGMENT: 22 march 2021 (via email)

[1] Chirwa v Transnet Limited and Others [2007] ZACC 23; 2008 (3) BCLR 251 (CC); 2008 (4) SA 367 (CC).

[2] Gcaba v Minister for Safety and Security and Others (CCT64/08) [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) ; (2010) 31 ILJ 296 (CC) ; [2009] 12 BLLR 1145 (CC) (7 October 2009).

[3] Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (41/2003) [2004] ZASCA 48; [2004] 3 All SA 1 (SCA) (28 May 2004).

[4] Chirwa v Transnet Limited and Others [2007] ZACC 23; 2008 (3) BCLR 251 (CC); 2008 (4) SA 367 (CC). PSA obo

[5] De Bruyn v Minister of Safety and Security[2012] 9 BLLR 888 (LAC).

[6] Annexure SM15, page 103 of indexed bundle.

[7] (5464/2018) [2019] ZAFSHC 267 (20 August 2019).

[8] Molala, supra, par [31].

[9] Molala, supra, Par [39].

[10] First respondent’s supplementary affidavit, para 17.1.

[11] Tsengwa v Knysna Municipality [2015] 8 BLLR 857 (LC),with reference to O’Regan J in Sidumo v Rustenburg Platinum Mines Ltd [2007] 12 BLLR 1097 (2008 (2) SA 24; (2007) 28 ILJ 2405) (CC) at pars 139ff.

[12]Gcaba v Minister for Safety and Security and Others (CCT64/08) [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) ; (2010) 31 ILJ 296 (CC) ; [2009] 12 BLLR 1145 (CC) (7 October 2009), para [75].

[13] Feni v Pan South African Language Board and Others (30640/2014) [2014] ZAGPPHC 654 (29 August 2014), para [16].

[14] Jiba v Minister: Department of Justice and Constitutional Development and Others 2009 (10) BLLR 989 LC at para 17.

[15] Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D) at 182 (A)

[16] Munters (Pty) Ltd v Serote and Another (4004/2014) [2018] ZAGPJHC 491 (26 March 2018) para 6.

[17] Dince v Department of Education North West Province [2009] 8 BLLR 833 (LC) at par 4.