Newcastle Municipality v Nzimande and Others (D811/19) [2020] ZALCD 11; [2021] 1 BLLR 94 (LC) (26 July 2020)

Newcastle Municipality v Nzimande and Others (D811/19) [2020] ZALCD 11; [2021] 1 BLLR 94 (LC) (26 July 2020)

The Labour Court found that the Third Respondent, in extending the fixed term contracts of the two respondents, acted contrary to the explicit resolution of the Municipal Council, which required the posts to be advertised and filled through open selection. Both respondents admitted knowing that the Council had...

Source-derived case information.

Citation
[2020] ZALCD 11
Parties
Applicant: Newcastle Municipality; Respondent: Reverance Sibonele Nzimande; Respondent: Muzi Obed Shozi; Respondent: Bhekani Errol Mswane
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
26 July 2020
Case Number
D811/19
Procedural Posture
Review Application / Judgment on Legality Review of Employment Contract Extensions
Outcome
Application granted; the decisions to extend and appoint the respondents were reviewed and set aside as invalid and void ab initio. Costs awarded against the respondents, jointly and severally.
Judges
Cele
Legal Topics
Legality Review, Municipal Systems Act, Fixed Term Contracts, Ultra Vires Appointments, Ostensible Authority
Labour Law Administrative Law Legality Review Municipal Systems Act Fixed Term Contracts Ultra Vires Appointments Ostensible Authority

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Summary, issues, holding and outcome

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Parties

Newcastle Municipality

Applicant

Reverance Sibonele Nzimande

Respondent

Muzi Obed Shozi

Respondent

Bhekani Errol Mswane

Respondent

Procedural Posture

Review Application / Judgment on Legality Review of Employment Contract Extensions

Legal Issues

  1. 1 Whether the Third Respondent's extension of the fixed term employment contracts was lawful.
  2. 2 Whether the appointments were ultra vires and contrary to the Municipal Council's resolutions.
  3. 3 Whether the respondents could rely on ostensible authority of the municipal manager.

Ratio Decidendi

The Labour Court found that the Third Respondent, in extending the fixed term contracts of the two respondents, acted contrary to the explicit resolution of the Municipal Council, which required the posts to be advertised and filled through open selection. Both respondents admitted knowing that the Council had resolved against further use of fixed term contracts, and thus could not reasonably rely on ostensible authority. The appointments were ultra vires and unlawful, as they were not made in accordance with the Municipal Systems Act and the Council's policy directions. The legality review was brought without undue delay, and the procedural objections raised by the respondents were...

Court Disposition

Application granted; the decisions to extend and appoint the respondents were reviewed and set aside as invalid and void ab initio. Costs awarded against the respondents, jointly and severally.

Orders

  • The decision of the Third Respondent taken on 30 November 2018 to extend the fixed term employment contracts of the two Respondents and to further appoint them as employees of the applicant is reviewed and set aside.
  • The appointment of the two Respondents on 30 November 2018 as employees of the applicant is declared invalid and void ab initio.