Nyalunga v Municipal Manager: Ehlanzeni District Municipality and Others (J771/24) [2024] ZALCJHB 307 (8 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J771/24

In the matter between: JELOUS MUSA NYALUNGA Applicant And THE MUNICIPAL MANAGER: EHLANZENI DISTRICT MUNICIPALITY First Respondent EHLANZENI DISTRICT MUNICIPALITY Second Respondent THE SPEAKER: EHLANZENI DISTRICT MUNICIPALITY Third Respondent THE ACTING EXECUTIVE MAYOR: EHLANZENI DISTRICT MUNICIPALITY Fourth Respondent THE MUNICIPAL COUNCIL: EHLANZENI DISTRICT MUNICIPALITY Fifth Respondent

Heard: 6 August 2024

Delivered: 8 August 2024

This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date for hand-down

is deemed to be 8 August 2024.

JUDGMENT

MAKHURA, J

[1] The ‘worrying trend’ of ‘unexceptional’ urgent applications by persons who have the ability to afford the legal costs of seeking urgent relief continues in this court.[1] What is more concerning is the failure by such persons or applicants to articulate in their founding papers the reasons the matter is urgent and/or should be heard and determined on an urgent basis and to address with sufficient particularity the requirements for the interdictory relief they seek.

[2] Rule 38 (2) of the Rules Regulating the Conduct of Proceedings of the Labour Court which were promulgated on 17 July 2024[2] is not different to rule 8 (2) of the old rules for this Court. Rule 38(2)(a) requires an urgent applicant to set out the reasons for urgency and why the court should grant the relief sought

[3] The rule envisages that an applicant for an urgent relief must not only make the necessary averments in his founding papers why his application is urgent, he must also make the necessary averments to sustain the relief sought on an urgent basis and the reasons for abridging the court rules. In applications for final interdicts, the applicant must show a clear right, irreparable harm and lack of adequate remedy.

[4] The applicant, an employee of Ehlanzeni District Municipality (Municipality) until 15 July 2024 when his employment contract terminated, brought an application seeking a final relief that:

‘…the letter purporting to terminate the services of the Applicant dated 14 June 2024 … is unlawful, invalid and of no force and effect.

Interdicting and restraining the Respondents from terminating the employment contract of the Applicant with Ehlanzeni District Municipality.’

[5] The respondents not only opposed the application, they also launched an urgent counter-application to review and set aside the contract of employment dated 20 January 2022 and for a declaratory order that the contract lapsed on 15 July 2024.

[6] The applicant was employed with effect from 10 January 2022 in the capacity of Senior Manager: Office of the executive mayor. This position was advertised in 2021. The advertisement stipulated that the position was linked to the term of office of the executive mayor.

[7] On 6 January 2022, the Municipality issued a letter of appointment to confirm the applicant’s appointment. The letter made reference to the Main Collective Agreement of 2015 and the Mpumalanga Collective Agreement as documents that clarified the applicant’s conditions of employment. This letter of appointment was accepted by the applicant on 10 January 2022. The letter of appointment also stated that the applicant’s appointment was linked to the office of the executive mayor. The applicant also signed a contract of employment on the same day. This contract stated that the applicant’s appointment “will terminate on the date of expiry of the current term of Council”.

[8] On 14 June 2024, the executive mayor resigned with immediate effect. On 15 June 2024, Goodness Zulu (Zulu), the Municipality’s Acting General Manager of Corporate Services, emailed a termination letter of the applicant to her colleagues and asked them to format the letter for the municipal manager’s signature. Zulu instructed her colleagues to prepare the exit forms for the applicant and urged them to attend to the tasks by 18 June 2024.

[9] The Municipality contends that it contacted the applicant on 18 June 2024 to attend the office to collect his termination letter. This version was comprehensibly refuted by the applicant. However, on 24 June 2024, the applicant met with Zulu. Zulu’s version is that she requested the applicant to collect the termination letter from one of her colleagues. The applicant disputed this and stated that Zulu informed him of the Municipality’s intention to terminate his employment, which he then informed her that the Municipality could not do that as his contract is only due to expire at the end of term of Council in 2026.

[10] The applicant collected the termination letter on 3 July 2024, after he was requested to collect it on 2 July 2024. On 8 July 2024, the applicant’s attorneys of record addressed a letter to the Municipality. The letter referred to the provision in the contract of employment which stipulates that the employment will terminate on the expiry of the term of the Council and demanded the Municipality to withdraw the notice of termination. The Municipality did not accede

to the demand and the applicant then launched these proceedings.

[11] The applicant seeks an order that the matter be heard on an urgent basis and that the Court should declare the termination letter unlawful, invalid and of no force. He also seeks an order interdicting and restraining the Municipality from dismissing him. It is clear from the terms of the notice of motion that the applicant seeks a final declaratory and interdictory relief. The respondents have taken issue with urgency.

[12] In his founding papers, the applicant contends that the application is urgent because he would lose his salary and that he has a home loan, motor vehicle instalment and that he pays school fees for his children. In his heads of argument, the applicant refers to the judgments of this Court in Mahonono v National Heritage Council and another (Mahonono)[3] and Letsholonyane v Minister of Human Settlements (Letsholonyane)[4]. These judgments did not establish, as the applicant appears to suggest, that all breach of contract claims where an applicant seeks declaratory and interdictory orders or orders for specific performance are urgent. Each case must be decided on its own facts

and merits as pleaded to establish whether the matter is urgent and whether the requirements for the relief sought have been satisfied.

[13] Having considered the founding papers, I am unpersuaded that the applicant has sufficiently articulated the reasons why this matter should be enrolled and determined on an urgent basis.

[14] The requirements for final interdict are well established. The applicant must show a clear right, harm suffered or reasonably apprehended and the lack of other adequate remedy.

[15] Whether the applicant has a clear right turns on the duration of the employment contract – that is, whether his contract was linked to the office of the executive mayor or the Council. The applicant had to show on a balance of probabilities that his fixed term contract of employment expires in 2026 (at the end of the Council’s term), as he alleged, and not 30 days after the executive mayor vacates the office. Any factual disputes must be resolved in terms of the Plascon-Evans principle[5].

[16] The applicant relies on the terms of the contract of employment signed on 10 January 2022 and contends that his right has been violated. He submitted that he has a clear right because his term of office ends in 2026 and that he is entitled to render his services until the expiry of the term of office. In his founding affidavit, the applicant contends that his terms and conditions of employment with the Municipality are solely transcribed and embedded in the contract of employment signed on 10 January 2022.

[17] The respondents contend that the applicant has not satisfied this requirement, for various reasons. First, his key performance areas contained in the contract of employment include that he was to support the executive mayor, which evinces that his contract is or should be linked to the executive mayor’s office. Second, the advertisement stated that the appointment was linked to the office of the executive mayor. Third, the appointment letter issued on 6 January 2022 and accepted on 10 January 2022 states that the fixed term contract was “attached to the term of the executive mayor”. Fourth, the Joint Circular 1 issued by the Department of Cooperative Governance, National Treasury and the South African Local Government Association dated 21 October 2021 on “management of the various transitional measures: pre and post the 2021 local government elections” (Circular) prescribes that persons appointed to support the office of public officer-bearers must be appointed on a fixed term contract linked to the duration of the public office-bearer. Clause 3.4(c) of the Circular provides that:

‘A person appointed to a post on the approved staff establishment in order to support the office of a public officer-bearer, must either be seconded from a post on that municipality’s approved staff establishment or another municipality’s staff establishment, or be appointed on a fixed-term contract of employment linked to the duration of office of the public office-bearer.

The duration of the secondment or fixed-term employment contract contemplated herein cannot be validly extended beyond a period of 30 days after the public officer-bearer vacates office.’

[18] It is evident from the above that the alleged clear right has been placed in dispute by the respondents. The respondents’ version, which is substantiated by the Circular, appointment letter and advertisement, that the applicant’s contract of employment was linked to the term of office of the executive mayor is, in my view, not far-fetched.[6] Accordingly, there is serious doubt that the applicant has a clear right to continue his employment after 30 days of the executive mayor vacating office. On this basis, the final interdict cannot be granted. In the absence of a protectable right, the declaratory relief must equally fail.

[19] The finding that the applicant has failed to prove that he has a clear right marks the end of the enquiry. The application is not urgent and falls to be struck off the roll. The counter-application suffers the same fate.

[20] This court retains its wide discretion to determine costs even when dealing with contractual matters. I have considered that the respondents launched a counter-application on an urgent basis to be heard only in the event that the main application is heard on an urgent basis. The parties have exchanged extensive pleadings in both

applications. For these reasons, it is my view that fairness dictates that there should be no costs order.

[21] In the premises, the following order is made:

Order

1. The main and counter- applications are struck off the roll for lack of urgency.

2. There is no order as to costs.

M. Makhura

Judge of the Labour Court of South Africa

Appearances: For the Applicant: Adv. K. Maphwanya with Adv. O. Modumeli Instructed by: Munonde Attorneys For the Respondents: Adv. C.A.C. Korf Instructed by: WDT Attorneys

[1] See the comments made by this court a decade and a half ago in Jiba v Minister: Department of Justice and Constitutional Development and others (2010) 31 ILJ 112 (LC) at paras 17 and 18.

[2] GG 50608, GN 4775 of 3 May 2024.

[3] (2022) 43 ILJ 2335 (LC).

[4] (2023) 44 ILJ 1740 (LC).

[5] Plascon-Evans Paints v Van Riebeeck Paints 1984 (3) 623 (A) at 643E – 645D.

[6] Ibid.