Sibanyoni v Speaker of the City of Mbombela and Others (J 828/2024) [2024] ZALCJHB 309; (2024) 45 ILJ 2808 (LC) (19 August 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 828/2024

In the matter between: D.N.S. SIBANYONI Applicant and THE SPEAKER OF THE CITY OF MBOMBELA First Respondent THE MAYOR OF THE CITY OF MBOMBELA Second Respondent THE MUNICIPAL MANAGER OF THE CITY OF MBOMBELA Third Respondent THE COUNCIL OF CITY OF MBOMBELA Fourth Respondent THE CHIEF FINANCIAL OFFICER OF THE CITY OF MBOMBELA Fifth Respondent MEC FOR COOPERATIVE GOVERNANCE, HUMAN SETTLEMENT AND TRADITIONAL AFFAIRS, MPUMALANGA PROVINCE Sixth Respondent

Heard: 13 August 2024

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to

be on 19 August 2024

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The applicant approached this Court on an urgent basis. She seeks an order that the resolution adopted by the fourth respondent (Council) on 30 July 2024 at its special Council meeting, in terms of which she was placed on special leave, be declared unlawful and to be set aside. She seeks that the Council be directed to reinstate her in the position of Chief Financial Officer (CFO) forthwith.

Background:

[2] The applicant is the current CFO of the City of Mbombela having been appointed in that position since 31 January 2023. On 29 July 2024, she was furnished with a notice and agenda for a Special Council meeting scheduled for the next day. Amongst the items on the agenda was a report in which she was accused of allegations of misconduct, with recommendations that the misconduct be investigated.

[3] Through her attorneys of record, the applicant addressed correspondence to the first respondent (Speaker), demanding the removal of the item from the agenda as it was in violation of regulations under the Local Government: Municipal Systems Act[1] (Systems Act). When no response was received, the applicant approached this Court on an extremely urgent basis under Case Number:

J821/24. At the time that the matter came before the Court on 31 July 2024, the relief sought had become moot as the Council had

effectively adopted the impugned resolution. The matter was accordingly struck off the roll for lack of urgency.

[4] The applicant received a letter from the third respondent (Municipal Manager) on 31 July 2024 which was dated 30 July 2024, confirming that the resolution was adopted to place her on ‘special leave’ from 31 July 2024 up to an including 29 August 2024, to allow the investigations into the allegations of misconduct against her. When the Speaker did not respond to the applicant’s attorneys of record’s correspondence demanding copies of the minutes and the resolution, and further refused to have the resolution reversed, the applicant approached the Court on 5 August 2024 with this application.

[5] Only the first – fifth respondents (Respondents) opposed the application and had raised various defences. Central to the opposition was that the application ought to be struck off the roll for lack of urgency. Other than opposing the application on the merits, other defences related to the Court’s lack of jurisdiction, and the contention that the effect of the relief sought by the applicant is a request that the Court should breach the principle of separation of powers.

Urgency

[6] Under the recently adopted Rule 38(1) and (2) of the Rules of this Court[2], a party that applies for urgent relief must file an application that complies with the requirements of the rules relating to applications generally, and must file an affidavit in support of the application containing the reasons for urgency; why urgent relief is necessary, and the reasons why the requirements of the rules were not complied with.

[7] The principles emanating from various authorities[3] regarding urgency are that an applicant must equally state the reasons why he/she claims substantial redress will not be obtained if the matter was not brought before the Court by way of an ordinary procedure, instead of this extraordinary urgent procedure.

[8] The question of substantial redress in due course is not equivalent to that of the requirement of irreparable harm. Thus, whether the applicant will be able to obtain substantial redress in due course is dependent on the facts and particular circumstances of each case. Of importance however is that an applicant must provide evidence that immediate court intervention is required, and that if a matter is not heard sooner than the regular course, any potential future court order would no longer offer her the necessary legal protection. Of further equal importance is that urgent relief will be refused in circumstances where the matter has become urgent owing to dilatoriness on the part of the applicant, or where the urgency claimed is self-created[4].

[9] The applicant averred she did not delay in bringing the application as she had intended to enrol the matter on 8 August 2024 but was informed by the Registrar of this Court on 2 August 2024 that the urgent roll was packed. She further contended that a legality challenge is inherently urgent because of the unlawful exercise of public power that ought to be dealt with at the earliest opportunity. She averred that she would not be afforded substantial redress in due course in that she would have suffered irreparable harm by the time the unlawful process she had impugned was completed.

[10] The respondent’s primary attack on urgency was that the applicant did not afford them reasonable time to answer to the founding affidavit. This contention however lacks merit in that it was common cause that the application was launched on 5 August 2024 and the respondents were afforded until 8 August to deliver an answering affidavit. They had however done so on 7 August 2024 and they can thus not speak of any prejudice resulting from the manner and timing of service of this application.

[11] Equally lacking in merit is the respondents’ proposition that since the matter was initially struck off from the roll on 31 July 2024 for lack of urgency, this equally implied that it should remain struck off. The relief sought in the initial urgent application under Case Number J821/24, was to interdict the tabling of an item on the

Council agenda related to a report pertaining to the allegations of misconduct. The relief sought in this application however, relates to the subsequent decision of the Council to place her on ‘special leave’ following the tabling and adoption of the resolution. The relief sought in the two applications is clearly distinct.

[12] The applicant also contended that urgency arose because the application involved the public interest since she occupied the office of CFO where service delivery happens. In Ferreira[5], it was long held that the Court should require an applicant ‘to show that he or she is genuinely acting in the public interest’.

Factors to be considered in this regard include whether there is another reasonable and effective manner in which the challenge can be brought, the nature of the relief sought, and the extent to which the relief is of general and prospective application.

[13] The applicant had relied on Phalatse and Another v Speaker of the City of Johannesburg and Others[6] (Phalatse), for the proposition that where the issues raised in the application are of public importance, these demand urgent consideration by the Court.

[14] Flowing from the above two authorities, it is my view that to the extent that the impugned resolution in this case emanates from an exercise of power by the Council, and since the relief sought can be said to be of both general and individual application, it cannot be seriously said that the matter lacks urgency. Furthermore, one cannot say that substantial redress in due course remains available to the applicant in circumstances where further steps are to be taken against her as a result of the impugned resolution, which she alleged was unlawful. Thus, by that time the special leave would in any event have been lifted because of the 30-day time limitation imposed by the Council, substantial redress would not be afforded to the applicant at a hearing in due course.

[15] The Respondents correctly pointed out that the applicant’s case on urgency was sparse other than relying on the public interest and or illegality or unlawful decision to place her on special leave. It is however my view that to look at the grounds of urgency in isolation rather than as a whole is incorrect. Even if a single ground of urgency might lack merit, one or two other grounds may sustain the grounds for urgency. Of course the proviso is whether other requirements of urgency related to substantial redress in due course and acting with the necessary haste in order to prevent a harm

are evident.

[16] In Apleni v The President of the Republic of South Africa and Another[7], the court held that where allegations are made relating to abuse of power by a Minister or other public officials, which may impact upon the rule of law, and may have a detrimental impact upon the public purse, the relevant relief sought ought normally be urgently considered[8]. It is not suggested that the complaint in this case is about abuse of power. This application is about an exercise of public power by the Council, and there is no reason why the principle set out in Apleni should not find application, as that exercise of public power by Council as shall further be demonstrated in this judgment, impacts

upon the rule of law.

[17] On the whole, I am satisfied that this matter deserves the urgent consideration of this court and there is clearly no basis for any conclusion to be reached that the urgency claimed in this case is self-created.

Jurisdiction:

[18] The second issue relates to the jurisdiction of this Court. The applicant’s case is grounded on the unlawfulness and legality of the resolution to place her on special leave. She has disavowed reliance on any unfairness under the provisions of the Labour Relations Act. She relies on section 157(2)(b) and 158(2) of the LRA and challenges the foundation of the legal authority and conduct of the Council to have placed her on special leave. She questions the legality of an exercise of public power by the Council. In this regard, it was held in Phalatse that;

‘…Legality is an aspect of the rule of law which is a founding value of our Constitution. It requires that the exercise of all public power must be lawful. The exercise of public powers outside of the four corners of the relevant authorizing legislation is subject to review. Similarly, the holder of a public power must act in good faith and must not misconstrue their powers. An exercise of a public power for an ulterior purpose will thus fall foul of this aspect of the rule of law’[9].

[19] In the light of the basis of the impugned resolution, it follows that the respondents’ contention that the Court lacks jurisdiction to consider the application on the basis that the cause of action involved a matter under section 185 of the LRA, clearly lacks merit.

The merits:

[20] The employment of the applicant is in terms of section 57 the Systems Act. Her terms and conditions of employment are subject to the Local Government: Disciplinary Regulations for Senior Managers (The Regulations). Regulation 5 and 6[10], makes provision for the suspension of an employee such as the applicant, where there is reason to believe that she might have been involved in acts of misconduct necessitating her removal from her position either by means of a precautionary suspension or ultimately through a dismissal.

[21] Aligned to the Regulations and equally applicable to the applicant as a senior manager, is the Local Government: Regulations: Appointment and Conditions of Employment of Senior Managers promulgated in terms of the Systems Act. The Regulations recognises three circumstances or conditions which would qualify an employee to take leave, amongst which is family responsibility leave and special leave. Special leave can only be granted upon the request of the senior manager[11].

[22] The resolution of Council leading to the placement of the applicant on special leave is said to have been adopted pursuant to a report prepared by the Municipal Manager in terms of regulation 5 of the disciplinary code and procedure. A plain reading of all these regulations indicates that special leave can only be granted at the behest of an employee, and there is nothing such as ‘forced special leave’. Clause 32 of the Appointment and Conditions of Employment of Senior Managers Regulations, requires a Municipality to adopt a special leave policy which defines the circumstances and conditions under which such leave may be granted. The Court was not referred to any such policy adopted by the Council in this case to justify the forced special leave.

[23] The respondents insisted that the Applicant is placed on special leave rather than precautionary suspension for alleged misconduct which still needed to be investigated. They contended that regulation 6 was not invoked. Nonetheless, it is still not clear what is the source document or authority relied upon in imposing special leave.

Counsel for the respondents conceded that there is no such provision, and had added that the Council had in its ‘wisdom’,

resolved to place the applicant on special leave.

[24] In Heyneke v Umhlatuze Municipality(Heyneke)[12], this Court in dealing with the placement of a Municipal Manager on ‘special leave’ had the following to say;

“Special leave that is imposed on employees is effectively a suspension in the hope of subverting the residual unfair labour practice provisions of the Labour Relations Act No. 66 of 1995 (LRA) and all the time and other constraints that accompany suspensions.

To discharge its onus of proving the... lawfulness of the special leave the municipality has to show that the special leave was at all times at the instance of the employee and with his consent, that it was not imposed on him, that exceptional circumstances existed and that the special leave resolution was adopted in good faith, and that it was rational, reasonable, proportionate and in the public interest.”

[25] The same conclusion was arrived at in South African Municipal Workers Union obo Matola v Mbombela Local Municipality[13], where it was held that what the respondent labelled “special leave” resolution was nothing but the suspension of the

applicant in that case[14].

[26] Arising from the above authorities and further conclusions reached in Selepe and Another v Mohokare Local Municipality and Others[15], it is apparent that the Disciplinary Regulations for Senior Managers under the Systems Act does not make provision for an employer to place an employee on forced special leave. Special leave imposed by an employer is essentially euphemism for a precautionary suspension, to create an impression that the provisions of regulation 5 of the disciplinary code and procedure were complied with. It is irrelevant whether special leave is imposed for a prolonged or short period. It remains a suspension regardless. Thus, even if the provisions of regulation 5 are complied with, these can only be in respect of laying the ground work for the purposes of imposing a precautionary suspension under regulation 6, which is clearly not the issue in this case.

[27] Even if on the principles set out in Hynecke it might be argued that exceptional circumstances existed to adopt the special leave resolution, there is no discernible evidence from the respondents’ answering affidavit that indicates that the resolution was adopted in good faith, and that it was rational,

reasonable, proportionate and in the public interest. All that the Court was told was that the Council adopted the resolution in its ‘wisdom’.

[28] The importance of the rule of law in municipal governance, and in particular the need for municipal councils to conduct their affairs in line with the law cannot be over-emphasised. If the law is not complied with, all decisions taken in the relevant council meetings are unlawful. Adopting resolution placing employees under suspension

based on ‘wisdom’ as contended for by the respondents, is unfortunately not a legal basis for a failure to comply with

applicable legal prescripts, nor does it justify unlawfulness or illegality. On the opposite scale, decisions based on ‘wisdom’

evinces, lack of rationality and clear circumvention of the rule of law. Such decisions borders on self-help and abuse of power.

[29] The mere fact that there were allegations of misconduct to be investigated against the applicant does not in my view entitle the Council to circumvent the applicable regulations. This does not imply that no such investigations must be conducted where warranted. All that is being said is that the regulations are there to be followed

to the extent that the respondents seeks to pursue those allegations.

[30] Thus, in the absence of any legal basis that entitles the Council to adopt a resolution to place the applicant on special leave, it follows that the arguments surrounding the doctrine of separation of powers are clearly a non-starter where the Council as an executive authority has circumvented legal prescripts or acted unlawfully. Consequently, the impugned resolution cannot stand either on account of legality or lawfulness, and thus ought to be set aside.

[31] To conclude then in light of the above, I find that the applicant has satisfied the essential requirements for the application to be accorded urgency, and also the requirements for the final relief she seeks.

[32] The applicant sought a costs order. Having had regard to the blatant disregard by the applicants of the applicable prescripts in adopting the resolution, clearly the applicant was entitled to approach the Court to vindicate her rights. In the course of doing so, she was compelled to incur legal costs, which in my view and upon a consideration of the requirements of law and fairness, the Council ought to be burdened with.

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

Order:

1. The Applicant’s failure to comply with the Rules of this Court relating to form and manner of service is condoned, and her application is treated as urgent.

2. The Resolution adopted by the Fourth Respondent (Council Resolution B(1) of 30 July 2024) granting the Applicant special leave is declared unlawful and is set aside.

3. The Fourth Respondent is ordered to reinstate the Applicant into her position as Chief Financial Officer.

4. The Fourth Respondent is ordered to pay the costs of this application.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES: For the Applicant: Adv. T.S. Ngwenya, instructed by Ntiwane Mgijima Attorneys For the 1st – 5th Respondents: Adv. L. Zwane, instructed by WS Nkosi Attorneys

[1] Act 32 of 2000.

[2] No. 50608 Government Gazette, 3 May 2024

[3] See East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others (2012) JOL 28244 (GSJ) at para 6 and 7; See also Export Development Canada and Another v Westdawn Investments Proprietary and Others [2018] ZAGPJHC 60; [2018] 2 All SA 783 (GJ) at para 11; and Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64, where it was held; “It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent. Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent’s and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents, self-created urgency.”

[3] See East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others (2012) JOL 28244 (GSJ) at para 6 and 7; See also Export Development Canada and Another v Westdawn Investments Proprietary and Others [2018] ZAGPJHC 60; [2018] 2 All SA 783 (GJ) at para 11; and Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64, where it was held;

“It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent.

Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent’s and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents, self-created urgency.”

[4] See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Ntozini and Others v African National Congress and Others [2018] ZAGPJHC 415 (25 June 2018) at para 11. See also Erasmus in Superior Court Practice at D6 – 23, where it is stated that: “An interlocutory interdict may be refused if the applicant has delayed long before applying. An application for an interdict pendente lite from its very nature requires the maximum expedition from an applicant, who may forfeit his right to temporary relief if he delays unduly in bringing the interim proceedings to finality.”

[4] See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Ntozini and Others v African National Congress and Others [2018] ZAGPJHC 415 (25 June 2018) at para 11. See also Erasmus in Superior Court Practice at D6 – 23, where it is stated that:

“An interlocutory interdict may be refused if the applicant has delayed long before applying. An application for an interdict pendente lite from its very nature requires the maximum expedition from an applicant, who may forfeit his right to temporary relief if he delays unduly in bringing the interim proceedings to finality.”

[5] Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) at para 234.

[6] [2022] ZAGPJHC 1054 (25 October 2022) at para 20.

[7] (65757/2017) [2017] ZAGPPHC 656; [2018] 1 All SA 728 (GP)

[8] At para 10

[9] At para 85

[10] Regulations 5 and 6 read: 5. Disciplinary procedures. (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 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 allegation[s] of misconduct; and (b) there is no evidence to support the allegation[s] of misconduct against the senior manager, the municipal council must within seven [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 manager. (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 manager to - (i) appoint - (aa) an independent and external presiding officer; and (bb) an officer to lead evidence; and (ii) sign the letters of appointment. 6. Precautionary suspension (1) The municipal council may suspend a senior manager on full pay if it is alleged that the senior manager has committed an act of misconduct, where the municipal council has reason to believe that- (a) the presence of the senior manager at the workplace may - (i) jeopardise any investigation into the alleged misconduct; (ii) endanger the well-being or safety of any person or municipal property; or (iii) be detrimental to stability in the municipality; or (b) the senior manager may- (i) interfere with potential witnesses; or (ii) commit further acts of misconduct. (2) Before a senior manager may be suspended, he or she must be given an opportunity to make a written representation to the municipal council why he or she should not be suspended, within seven [7] days of being notified of the council's decision to suspend him or her. (3) The municipal council must consider any representation submitted to it by the senior manager within seven [7] days. (4) After having considered the matters set out in sub regulation (1), as well as the senior manager's representations contemplated in sub-regulation (2), the municipal council may suspend the senior manager concerned. (5) The municipal council must inform - (a) the senior manager in writing of the reasons for his or her suspension on or before the date on which the senior manager is suspended; and (b) the Minister and the MEC responsible for local government in the province where such suspension has taken place, must be notified in writing of such suspension and the reasons for such within a period

of seven [7] days after such suspension. (6) (a) If a senior manager is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse. (b) The period of three months referred to in paragraph (a) may not be extended by council.”

[10] Regulations 5 and 6 read:

5. Disciplinary procedures.

(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 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 allegation[s] of misconduct; and

(b) there is no evidence to support the allegation[s] of misconduct against the senior manager, the municipal council must within seven [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 manager.

(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 manager to -

(i) appoint -

(aa) an independent and external presiding officer; and

(bb) an officer to lead evidence; and

(ii) sign the letters of appointment.

6. Precautionary suspension

(1) The municipal council may suspend a senior manager on full pay if it is alleged that the senior manager has committed an act of misconduct, where the municipal council has reason to believe that-

(a) the presence of the senior manager at the workplace may -

(i) jeopardise any investigation into the alleged misconduct;

(ii) endanger the well-being or safety of any person or municipal property; or

(iii) be detrimental to stability in the municipality; or

(b) the senior manager may-

(i) interfere with potential witnesses; or

(ii) commit further acts of misconduct.

(2) Before a senior manager may be suspended, he or she must be given an opportunity to make a written representation to the municipal council why he or she should not be suspended, within seven [7] days of being notified of the council's decision to suspend him or her.

(3) The municipal council must consider any representation submitted to it by the senior manager within seven [7] days.

(4) After having considered the matters set out in sub regulation (1), as well as the senior manager's representations contemplated in sub-regulation (2), the municipal council may suspend the senior manager concerned.

(5) The municipal council must inform -

(a) the senior manager in writing of the reasons for his or her suspension on or before the date on which the senior manager is suspended; and

(b) the Minister and the MEC responsible for local government in the province where such suspension has taken place, must be notified in writing of such suspension and the reasons for such within a period

of seven [7] days after such suspension.

(6) (a) If a senior manager is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.

(b) The period of three months referred to in paragraph (a) may not be extended by council.”

[11] Regulation 32

[12] (2010) 31 ILJ 2608 (LC) at para [33] – [34].

[13] [2014] ZALCJHB 434; (2015) 36 ILJ 1341 (LC).

[14] At para 19.

[15] [2021] ZAFSHC 217 (25 August 2021).