Nkosi v Alfred Duma Local Municipality and Others (D224/2024) [2024] ZALCD 22 (3 July 2024)

FLYNOTES: LABOUR – Disciplinary proceedings – Interdict – Allegations of misconduct identified in investigation report against applicant – Contends non-compliance with disciplinary regulations when instituting disciplinary action – Mandatory obligations – No substantial compliance by municipality – Failures of substance – Not authorised to commence disciplinary measures – Ultra vires – Breach of employment contract obligations – Prima facie right established – Respondents are interdicted and restrained.

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Case No: D224/2024

Not Reportable

In the matter between:

MONDE THULASIZWE NKOSI

Applicant

and

ALFRED DUMA LOCAL MUNICIPALITY

First Respondent

MUNICIPAL MANAGER: S S NGIBA

Second Respondent

MUNICIPAL COUNCIL: ALFRED DUMA MUNICIPALITY Third Respondent

MZAMO NKOSI NO

Fourth Respondent

Heard: 31 May 2024

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date

and time for handing-down is deemed 14h00 on 3 July 2024.

JUDGMENT

ALLEN-YAMAN J

Introduction

[1] Pursuant to the applicant having initiated an urgent application which was opposed by the respondents, on 22 April 2024 this court granted an order in the following terms,

‘1. The Applicant’s failure to comply with the Rules of this Honourable Court relating to service and time periods be and is hereby condoned and this application is dealt with on an urgent basis.

2. A rule nisi do issue calling upon the First to Third Respondents to show cause on the 31st day of May 2024 at 10h00, or so soon as the matter may be heard, why an order in the following terms should not be granted:

2.1 The Respondents are interdicted and restrained from holding or proceeding with the disciplinary enquiry against the Applicant scheduled for 23 to 25 April 2024 in Ladysmith, pending the final determination of the review application in terms of section 158(1)(h) of the Labour Relations Act 66 of 1995, as amended, to be instituted by the Applicant by no later than 29 April 2024 to review and set aside the decision of the Second and / or Third Respondents to institute the disciplinary enquiry against the Applicant, and the ruling of the Fourth Respondent dated 17 April 2024, alternatively to declare the disciplinary proceedings against the Applicant to be unlawful, null and void for want of compliance with the Local Government: Disciplinary Regulations, 2010.

2.2 The First Respondent is directed to pay the costs of this application, alternatively, the Second Respondent is directed to personally pay the costs of this application on a punitive scale.

3. The order set out in 2.1 above shall operate as an interim order with immediate effect pending the final determination of this application.’

[2] By the return day, it was common cause that the application envisaged under paragraph 2.1 of the order had been initiated under case number D246/2024 on 29 April 2024.

Background

[3] The applicant (‘Mr Nkosi’) was employed by the first respondent (‘the Municipality’) on 17 October 2022 in the position of Chief Financial Officer, being one governed by s56 of the Local Government: Municipal Systems Act, 2000 and to which the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers applies.

[4] Some eight months later he was appointed as the Chairperson of the Municipality’s Bid Adjudication Committee (‘the BAC’), a committee established, amongst other things, to oversee the functions of the Municipality’s Bid Evaluation Committee (‘the BEC’) and to make recommendations regarding the awarding of tenders offered for the performance of various work to be undertaken for the Municipality.

[5] During the course of October 2023 the BAC had occasion to adjudicate the appointment of service providers to the Municipality on the basis of recommendations made by the BEC in respect of four tenders. It was the tender in respect of contract number DF05/2023 for the implementation and support of an integrated property valuation management system for a period of five years, dealt with by the BAC on 6 and 12 October 2023, which led to the institution of the disciplinary action against Mr Nkosi which forms the subject matter of the present application.

[6] On 19 October 2023 Mr Nkosi, in his capacity as Chairperson of the BAC, addressed a report to the second respondent (‘Ms Ngiba’), in her capacity as the Municipality’s Municipal Manager, in which the entity Umhlaba Consulting Group (Pty) Ltd (‘Umhlaba’) was identified as having been recommended by the BAC to be awarded contract number DF05/2023. The report noted that the BEC had recommended the appointment of a different entity, Data World (Pty) Ltd, but explained that the BAC had been of the view that the BEC’s recommendation had been premised on an error on its part, by having disqualified Umhlaba,

‘After a thorough evaluation by the BAC, it was noted that the reason for the disqualification of Messrs Umhlaba Consulting Group (Pty) Ltd was due to uncertified copies of their Qualifications and Certificates. The BAC found this as an insufficient reason to disqualify Messrs Umhlaba Consulting Group (Pty) Ltd.

[unclear]

The BAC found that Messrs Umhlaba Consulting Group (Pty) Ltd had quoted the lowest price in the bided amount at the price of R2 178 845,20 as compared to the bided amount by Messrs Data World (Pty) ltd who quoted the amount of R3 666 135,83.’

[7] Upon receipt of the aforementioned report Ms Ngiba called for a meeting with the members of both committees which meeting commenced on 19 October 2023 and concluded on the 23rd of that month. As a result of certain concerns on her part, on 24 October 2023 she instructed a firm of attorneys, Donda Attorneys, to conduct a forensic investigation into the recommendation of the BAC dated 19 October 2023. The terms of the mandate given to Donda Attorneys was to investigate and determine,

· ‘Why some of the members of the BAC were not invited to the continuation meeting held on 12 October 2023;

· Was the case law presented by Mr Shabalala to the BAC relevant and why was the misleading interpretation conveyed to the Municipal Manager;

· The reasons why Mr Ganja was reluctant to sign the minutes of the BEC;

· Whether the law permits members of the BAC to allow non-responsive bidders to resubmit documents, such as the qualifications that were not certified, after the close of tender;

· Whether the law allows BAC to re-evaluate tender documents;

· How the resolution of the meeting dated 12 October 2023 was pre-empted, as all the certified documents are dated before 12 October 2023;

· Who requested Umhlaba Consulting Group to re-submit the certified documents.’

[8] Donda Attorneys completed its investigation without having interviewed Mr Nkosi. Notwithstanding that the investigator, Mr Xulu, concluded in his report given to Ms Ngiba on 4 December 2023 that the BAC had failed in the execution of its duties in numerous respects, his recommendation related to Mr Nkosi alone,

‘10.1 It is hereby recommended that disciplinary proceedings be instituted against:

10.1.1 Mr Nkosi

10.1.1.1 Gross Misconduct for misleading the Accounting Officer through his report.

10.1.1.2 Financial Misconduct for his conduct as the CFO to make a recommendation that will cause an irregular expenditure for the municipality.

10.1.1.3 Gross dishonesty for misleading the Accounting Officer in his report saying the bidder scored the highest points when it did not.’

[9] Ms Ngiba indicated that she had conveyed the investigation report to the Mayor two days after she had received it so as to enable him to place it on the agenda for consideration by the third respondent (‘the Council’). This was not done immediately, and the investigation report eventually served before the Council on 26 February 2024. On the occasion of that meeting Mr Xulu presented his report and Council passed the following resolution,

‘1. That the Accounting Officer be authorised to institute disciplinary measures against the Chief Financial Officer.

2. That the disciplinary matter be further reported to the Municipal Disciplinary Board.

3. That the Chief Financial Officer be placed on precautionary suspension in line with Section 6 of the Local Government Disciplinary Regulations for Senior Managers.’

[10] This resolution led to Ms Ngiba appointing both a chairperson and an evidence leader to chair and to prosecute, respectively, a disciplinary enquiry in respect of the allegations of misconduct identified in the investigation report as having been perpetuated by Mr Nkosi. The evidence leader duly prepared a charge sheet and by way of a notice dated 15 March 2024 Mr Nkosi was called to attend a disciplinary hearing on 27 March 2024.

[11] Pursuant to Mr Nkosi having been provided with copies of the investigation report and Council’s resolution of 26 February 2024 he formed the view that the disciplinary proceedings which were then underway were unlawful insofar as the Local Government: Disciplinary Regulations for Senior Managers (‘the Disciplinary Regulations’) had not been complied with, notwithstanding that the Municipality had been obliged to adhere to its prescripts. He duly made submissions in writing to the fourth respondent (‘the Chairperson’) in respect of this issue, to which the Municipality responded.

[12] The Chairperson found no merit in Mr Nkosi’s objections concerning the Municipality’s failure to have complied with the Disciplinary Regulations and issued a ruling to this effect. It was this ruling which led to Mr Nkosi having approached this court, before which the self-same issues as had been addressed at the disciplinary enquiry were raised.

Analysis

[13] Mr Nkosi seeks to interdict the incomplete disciplinary proceedings pending the outcome of the review application he has instituted, in which application his complaints concerning the legality of the proceedings will be finally determined, as will the issue of the rationality of the Chairperson’s ruling.

[14] On the authority of Fannie Khola v Road Accident Fund and Others (J278/2024) 2024 ZALCJHB, the respondents argued that Mr Nkosi was required to demonstrate a clear right in view of the fact that he is, in effect, seeking a final order. This assertion was premised on the conclusion then reached by this court that, in circumstances similar to the present, the applicant had been required to establish a clear, rather than a prima facie right. Such conclusion was arrived at by its reasoning that,

‘In casu, the applicant has crafted the relief sought in his notice of motion in a rather unusual manner. The applicant has effectively brought a review application under s158(1)(h) of the LRA, seeking to review and set aside a ruling by a disciplinary hearing chairperson refusing a recusal application brought by the applicant, and then, pending the ultimate conclusion of that review application, interdicting the disciplinary hearing from proceeding. Although being couched as interim relief, what the applicant is effectively seeking is final relief, especially considering the undetermined time it would take for review proceedings to be concluded. There is no legal basis for a review application to be decided urgently. Using this methodology, litigants in reality seek to effectively permanently interdict disciplinary proceedings from taking place, and must be warned in no uncertain terms that this kind of conduct is not acceptable.’[1]

[15] The nature of an interim interdict was explained by the Constitutional Court in National Gambling Board v Premier, Kwazulu-Natal and Others [2001] ZACC 8; 2002 (2) SA 715 (CC) as follows,

‘An interim interdict is by definition

“a court order preserving or restoring the status quo pending the final determination of the rights of the parties. It does not involve a final determination of these rights and does not affect their final determination,”

The dispute in an application for an interim interdict is therefore not the same as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision of the main dispute.’[2]

[16] Accordingly, where Mr Nkosi has sought an order that the disciplinary enquiry be held in abeyance pending the outcome of the final determination of the legality thereof, the relief he seeks can be categorised as nothing other than interim. The duration of time for which an interim interdict is intended to operate, and the fact that an interdict may endure for an indeterminable period of time does not change the nature thereof and thereby cause it to become one which is final.

[17] The requirements for an interim interdict are trite: a prima facie right, though open to some doubt; a well-grounded apprehension of irreparable harm if interim relief is not granted and the ultimate

relief is eventually granted; the balance of convenience is in favour of the granting of the interim relief; and the absence of any other adequate, ordinary remedy.[3]

[18] In asserting that he had a right to require the respondent’s compliance with the Disciplinary Regulations, Mr Nkosi relied on both the peremptory nature thereof, as well as a contractual entitlement thereto.

[19] Regulation 5 provides,

‘(1) Any allegation of misconduct against a senior manager must be brought to the attention of the municipal council.

(2) An allegation referred to in sub-regulation (1) must be tabled by the mayor or the municipal manager, as the case may be, before the municipal council not later than seven [7] days after the receipt thereof, failing which the mayor may request the Speaker to convene a special council meeting within seven [7] days to consider the said report.

(3) If the municipal council is satisfied that –

(a) there is a reasonable cause to believe that an act of misconduct has been committed by the senior manager, the municipal council must within seven [7] days appoint an independent investigator to investigate the allegations of misconduct; and

(b) there is no evidence to support the allegation[s] of misconduct against the senior manager; the municipal council must within seen [7] days dismiss the allegation[s] of misconduct.

(4) The investigator appointed in terms of sub-regulation (3)(a) must, within a period of thirty [30] days of his or her appointment, submit a report with recommendations to the mayor or municipal manager, as the case may be.

(5) The report contemplated in sub-regulation (4) must be tabled before the municipal council in the manner and within the timeframe as set out in sub-regulation (2).

(6) After having considered the report referred to in sub-regulation (4), the municipal council must by way of a resolution institute disciplinary proceedings against the senior manger.

(7) The resolution in sub-regulation (6) must-

(a) include a determination as to whether the alleged misconduct is of a serious or a less serious nature;

(b) authorise the mayor, in the case of municipal manager, or municipal manager, in the case of the manager, directly accountable to the municipal mangaer to-

(i) appoint

(aa) an independent and external presiding officer; and

(bb) an officer to lead evidence; and

(ii) sign the letters of appointment.’

[20] It is common cause that certain aspects of Regulation 5 were not complied with when instituting disciplinary action against Mr Nkosi. Mr Nkosi’s complaints in particular are:

- The allegations of misconduct against him were not brought to the attention of Council and, in the absence of Council having considered the issue or taken any resolution concerning whether there was reasonable cause to believe that he had committed an act of misconduct, and accordingly in the absence of a resolution having been taken by it to appoint an investigator, Ms Ngiba usurped the function of Council by making the determination and effecting the appointment herself.

- That which was ultimately tabled before Council, albeit long after the lapse of a period of seven days, was the report obtained by Ms Ngiba, which itself was incomplete for want of the investigator having interviewed him.

- The decision taken by Council to institute disciplinary measures against him was deficient insofar as Council had not included any determination as to whether the alleged misconduct was serious or otherwise.

- Ms Ngiba, having been authorised to ‘institute disciplinary measures’ and not having been expressly authorised to appoint and sign letters of appointment in respect of either a presiding officer or an evidence leader acted ultra vires when having done so.

[21] Whilst the respondents conceded that the aforementioned provisions were not precisely complied with, they argued that the Regulations ought not to be regarded as peremptory but rather, if purposively interpreted, directory and that substantive compliance, which has been achieved in the present matter, suffices.

[22] Whilst there are certainly cases in which our courts have endorsed an approach that the use of the word ‘must’ (as is used repeatedly in the Disciplinary Regulations) is not always to be regarded as peremptory, it must be borne in mind that, at this stage of the proceedings, this court is required only to assess the issue on the basis of whether Mr Nkosi has established a prima facie right to the enforcement of the provisions of the Disciplinary Regulations.

[23] This court has considered the binding nature of the Disciplinary Regulations in several cases, and without exception, the mandatory nature of the obligations cast upon municipalities by virtue of the Disciplinary Regulations has been confirmed. In Biyase v Sisonke District Municipality and Another (2012) 33 ILJ 598 (LC) this court stated,

‘These regulations impose obligations on municipalities with regard to procedural steps in disciplinary proceedings that are far more stringent than those imposed by the Labour Relations Act – and arguably unnecessary and out of line with the objectives of the LRA – but the first respondent is bound by them.’[4]

[24] This principle was reiterated in Nothnagel v Karoo Hoogland Municipality 2012 JDR 1533 (LC) when it stated that,

‘The regulations are in the form of subordinate legislation and binds all the parties to this application.’[5]

[25] Again, in Lebu v Maquassi Hills Local Municipality (1) (2012) 33 ILJ (642) (LC) the municipality’s failure to have complied with the Disciplinary Regulations prior to having suspended the employee in that matter was found to have been unlawful and his suspension was set aside. Finally, and more recently, the peremptory nature of the Disciplinary Regulations was confirmed in South African Municipal Workers Union v Letsimeng Local Municipality and Another (J75/2024) [2024] ZALCJHB 106 (5 March 2024).[6]

[26] Nothing before this court leads it to conclude that any of the conclusions reached in the aforementioned cases that the obligations cast upon municipalities in terms of the Disciplinary Regulations are mandatory were wrongly decided. It accordingly does not avail the respondents to argue that there has been ‘substantial compliance’ with the Disciplinary Regulations, a concept which has previously been rejected by this court.[7]

[27] However, and even if the prescripts contained in the Disciplinary Regulations ought not to be regarded as peremptory, and ‘substantial compliance’ suffices, this court is unable to conclude on the facts of this matter that there has been substantial compliance by the Municipality. Unlike the position where formalities may be departed from without fatally affecting the outcome, the failures in the present matter were not mere formalities, they were failures of substance.

[28] At no point did the Council authorise Ms Ngiba to institute disciplinary action in terms of Regulation 8, she was authorised to commence disciplinary measures. The disciplinary measures envisaged in the Disciplinary Regulations include the processes

envisaged by both Regulation 7 (Less Serious Misconduct) and Regulation 8 (Serious Misconduct). The obligation cast upon a municipal council to consider and to resolve the issue whether misconduct is found to be serious or otherwise is one which determines whether the disciplinary proceedings which then ensue are to be dealt with in terms of the former Regulation, or the latter. Those processes lead to their own potential outcomes, the outcome of dismissal not being a competent result under Regulation 7. Where the power to make such a decision is given to a municipal council, and where such municipal council does not make such a determination, it

cannot be said that the exercise of such power (whether tacitly or expressly) by a municipal manager constitutes ‘substantive

compliance’ with the Disciplinary Regulations. Accordingly, in the absence of any resolution taken by Council in relation to the seriousness of the misconduct itself, the subsequent action taken by Ms Ngiba by which she effectively assigned the misconduct to the category of ‘Serious’, adopted a Regulation 8 process, and appointed individuals to execute that process constituted the usurping of the Council’s powers, and was ultra vires.

[29] There is a further reason why the respondents were obliged to comply with the prescripts of the Disciplinary Regulations and that is by virtue of Mr Nkosi’s contract of employment. Upon taking up employment with the Municipality he entered into a written contract of employment in which the parties agreed, in terms of clause 3.1, that his appointment was subject to the terms and conditions recorded therein. Provision was made for the termination of the agreement which included, in terms of clause 11.1, termination in compliance with the Disciplinary Regulations. In amplification thereof, the parties agreed that,

‘13. DISCIPLINARY CODE AND PROCEDURE FOR MISCONDUCT

The Local Government: Disciplinary Regulations for Senior Managers, 2010 as published in Government Notice No 34213 shall be applicable in all instances of misconduct in terms of your employment with the Municipality.’

[30] By incorporating the Disciplinary Regulations into their written agreement they were elevated to the status of contractual obligations on the part of the respondents. Absent any suggestion by the respondents that the parties’ contract incorporated a tacit term that the Municipality could depart from the Disciplinary Regulations at its sole election, and as the regulations themselves have been found to be peremptory, no term of the agreement to this effect can be found to have either been tacitly incorporated into the contract nor implied as a matter of law. The respondents accordingly enjoyed no contractual right to depart from the obligations imposed upon them in terms of the Disciplinary Regulations, and their failure to have complied therewith constituted a breach of Mr Nkosi’s employment contract.

[31] In light of the above, this court finds that Mr Nkosi has established a prima facie right to enforce compliance by the respondents with the Disciplinary Regulations.

[32] Insofar as the issue of irreparable harm is concerned, the applicant asserted that he will be financially prejudiced by having to incur legal costs in defending himself in proceedings which are flawed, against charges which lack merit.

[33] Whilst Mr Nkosi dealt briefly with the merits of the charges, the respondents dealt with the issue at length in their answering affidavit. It is not, however, for this court to make any determinations concerning the merits of the allegations of misconduct against Mr Nkosi, and nor could it do so in application proceedings. Regardless, in the present circumstances, the issue is immaterial to the question of irreparable harm.

[34] Further to this, given this court’s conclusions regarding the failure on the part of the respondents to have complied with their antecedent obligations, whatever money Mr Nkosi (as well as the Municipality itself) expends in the defending himself in the present disciplinary enquiry, appears likely to be in vain. Whilst financial prejudice alone is not ordinarily regarded as an issue giving rise to urgency, this court can conceive of no reason why this issue cannot be taken into account in consideration of the issue of irreparable harm. Mr Nkosi is correct that the costs which will be incurred by him in defending himself in the present disciplinary enquiry are likely to be irrecoverable. The Disciplinary Regulations vest the Presiding Officer with no power to make such an award, and nor is any cause of action upon which a claim for the recovery thereof could be instituted immediately apparent.

[35] The respondent has suggested that a reasonable alternative to the present application lies in Mr Nkosi’s review in due course. The suggestion that he must endure the very harm he seeks to avoid pending the outcome of a different process has no merit. As was stated by this court in Mkasi v Department of Health: KwaZulu-Natal and Another (2019) 40 ILJ 2576 (LC),[8] his review application could well be rendered academic in due course in the absence of this court’s immediate intervention. Prior to approaching this court Mr Nkosi sought to achieve the same end by having placed his arguments before the Chairperson, and by having requested the respondents to agree to holding the disciplinary enquiry temporarily in abeyance pending the outcome of his anticipated review application, neither of which actions achieved the temporary cessation of the disciplinary enquiry. This court accordingly finds that he had no reasonable, alternative remedy but to approach this court for an interim interdict.

[36] This court likewise finds that the balance of convenience favours the granting of the relief sought. In this, this court aligns itself with the reasoning expressed in Mkasi,

‘There is no merit in proceeding with the disciplinary hearing as the continuation of the hearing is dependent on the existence of a particular state of affairs yet to be decided upon by this court, which has a potential to put a permanent end to the disciplinary hearing.’[9]

[37] That the outcome of the disciplinary enquiry stands to be obviated by the review application for want of compliance with the Disciplinary Regulations is a conclusion which was also arrived at by one of the authorities to which this court was referred by the respondents, Jako-Wutu v Ntabankulu Local Municipality and Others (P332/14) [2016] ZALCPE 1,

‘The impugned decisions specifically empowered the holding of the enquiry in terms of the regulations and the legal authority of the council to authorise those proceedings was inextricably tied up with the lawfulness of those resolutions as the authority to conduct the proceedings and to dismiss the applicant flows from the lawfulness of the disciplinary proceedings. In consequence, a successful attack on the lawfulness of those antecedent resolutions completely undermines the legal foundation of all the subsequent acts, because it renders the entire disciplinary proceedings a legal nullity. As a result, the applicant’s dismissal for misconduct cannot be lawful as it was effected in breach of the regulations governing the taking of disciplinary action against senior managers because the decisions that needed to be taken in terms of those regulations, which were prerequisites for establishing a lawful disciplinary enquiry were not lawfully valid resolutions of the municipal council.’[10]

[38] In the event that the review application succeeds, Mr Nkosi will have been spared from having been obliged to have participated in what appears to this court to be an unlawful process. Conversely, if Mr Nkosi does not succeed, there is no reason why the disciplinary

hearing could not then resume. The respondents did not argue that they anticipated that any negative consequences would ensue in

relation to the enquiry itself in the event that it was suspended for a period of time, having asserted only that the Municipality would suffer financial losses by being obliged to pay Mr Nkosi his salary whilst he remained on suspension pending the outcome of the disciplinary enquiry. This potential harm was negated, however, by virtue of the fact that by the time the matter was argued his suspension had been uplifted.

[39] The final consideration is the principle that a court will not intervene in incomplete disciplinary processes save in exceptional circumstances.[11] Where an interlocutory challenge relates to an issue which could readily be resolved at the stage of a dispute concerning the fairness

of an employee’s dismissal, if this is the eventual outcome, there can be no difficulty with the injunction against piecemeal

litigation. The complaint before this court does not, however, concern an issue of mere procedural unfairness; it concerns the

fundamental legality of the process as a whole. If allowed to run its course, unimpeded by this court’s intervention, Mr Nkosi will be obliged to endure a disciplinary enquiry which has been established, prima facie, to be unlawful, and will be further obliged to risk the termination of his services by the Chairperson, the validity of whose appointment is in serious doubt. To require Mr Nkosi to subject himself to such a process, by declining to issue the order he seeks at this stage, would be antithetical to the purpose for which this court was established.

Costs

[40] In relation to costs Mr Nkosi sought an order that his costs be paid by the Municipality, alternatively Ms Ngiba herself. As the respondents likewise sought a costs order, the parties are clearly not concerned that such an order will have any adverse impact on their ongoing employment relationship.

[41] Mr Nkosi endeavoured to avoid having to approach this court and was obliged to do so despite his best efforts. The respondents, on the other hand, persisted in the face of numerous authorities unequivocally expressing the peremptory nature of the Disciplinary

Regulations, and notwithstanding that Mr Nkosi had clearly drawn the issues involved to their attention. As Mr Nkosi was obliged to incur legal costs to protect his rights, this court can conceive of no reason in either law or fairness as to why he should be obliged to bear such burden.

[42] Whilst Ms Ngiba herself may personally have been involved in the events which led to this application by having instructed an attorney to investigate the circumstances in which recommendation of the BAC had arisen, and by having appointed the Chairperson and the evidence leader of the disciplinary enquiry, there is nothing before this court which leads to the conclusion that her actions in having done so were actuated mala fide, or that there is any other reason for her to bear greater responsibility in the outcome than the Council itself. Accordingly, it will be the Municipality which will be required to pay Mr Nkosi’s costs.

Order

1. The respondents are interdicted and restrained from holding or proceeding with the disciplinary enquiry against the applicant which commenced in consequence of the resolution taken by the third respondent on 26 February 2024 pending the final determination of the application initiated by the applicant under D236/2024.

2. The first respondent is directed to pay the applicant’s costs.

K Allen-Yaman

Judge of the Labour Court of South Africa

Appearances

Applicant:

Mr B Mgaga, Garlicke & Bousfield Inc.

Respondents:

Mr P O Jafta, Jafta Inc.

[1] At paragraph 2

[2] At paragraph 49

[3] Setlogelo v Setlogelo 1914 AD 221 at 227

[4] At paragraph 1

[5] At paragraph 27

[6] At paragraph 48

[7] See Penxa v Beaufort West Municipality and Others (C77/22) [2022] ZALCCT 16 at paragraph 21, and South African Municipal Workers Union v Letsimeng Local Municipality and Another (J75/2024) [2024] ZALCJHB 106 at paragraphs 37 - 39

[8] At paragraph 19

[9] At paragraph 22

[10] At paragraph 27

[11] Booysen v Minister of Safety and Security and Others (2011) 32 ILJ 112 (LAC) at paragraph 36