South African Municipal Workers Union obo Makofane v Matjhabeng Municipality and Another (JR 401/2021) [2021] ZALCJHB 72 (31 May 2021)

The Labour Court of South Africa

(Held at Johannesburg)

Not reportable

Case No: JR 401/2021

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION

obo TUMELO MAKOFANE

Applicant

and

MATJHABENG MUNICIPALITY

First Respondent

ZINGISA TINDLENI: MUNICIPAL MANAGER

Second Respondent

Date of judgment: 31 May 2021.

Judgment delivered by email.

JUDGMENT

VAN NIEKERK J

[1] The applicant, employed by the first respondent (the municipality) as its executive director: strategic support, seeks an order declaring his suspension to be unlawful. At the hearing of the application, I raised with the parties’ representatives the issue of jurisdiction, and in particular, whether in the light of the judgment by the Constitutional Court in Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA Intervening) (2016) 37 ILJ 564 (CC)), the court has jurisdiction to declare acts of suspension unlawful. The parties’ representatives have submitted heads of argument on this point, and I am indebted to them for their comprehensive submissions.

[2] The material facts are not in dispute. The applicant was employed by the first respondent on 1 February 2015. He is a senior manager for the purposes of section 56 of the Municipal Systems Act, 2000. During March 2021, the second respondent, the municipal manager, requested the applicant to provide her with the report detailing the irregular appointments of four officials. Before the report was finished, the applicant received a phone call from the SAPS advising him that a warrant for his arrest had been issued and that he should report to the Welkom Police Station in the morning of 23 March 2021. The applicant was arrested on the same day and appeared in the magistrate’s court, when he was released on bail. One of the conditions of his bail was that he was not permitted to enter the municipality’s premises.

[3] The applicant states that the latter condition was removed after an urgent application on 30 March 2021. In the answering affidavit, the municipal manager denies any knowledge of the amendment to the applicant’s bail conditions. She states that the matter has been remanded to 5 May 2021, and that it is likely that the matter will receive further consideration by the council at its next sitting on 27 May 2021.

[4] In the interim, the applicant had been notified, on 25 March 2021, of the fact that the power to suspend him vested in the council and that a sitting of the council was scheduled for 31 March 2021. The applicant returned to work on 1 April 2021 and tendered his services, in circumstances where another employee had been appointed to act in

his place. On 13 April 2021, the applicant received a letter from the office of the municipal manager, dated 12 April 2021,

advising him that the council had resolved, on 1 April 2021, that he should adhere to his initial bail conditions and not report for duty.

[5] The municipal manager also denies that the applicant has been suspended. She states that the municipality’s position is that the court imposed bail conditions which were acknowledged by the council on 31 March 2021 and that both she and the council are unaware of any amendment to those conditions. She states that if the applicant is to be suspended in due course, the necessary processes will be followed.

[6] The applicant contends that his suspension is unlawful and in breach of the local government: disciplinary regulations for senior managers. In particular, the applicant avers that the principality has breached regulation five (which requires an investigation into allegations of misconduct if a municipal council is satisfied that there is reasonable cause to believe that an act of misconduct has been committed by the senior manager) and after a report by the investigator. Thereafter, after having considered the report, the municipality must by way of resolution institute any disciplinary proceedings against the senior manager. The applicant avers that to the best of his knowledge, no investigator has been appointed in terms of Regulation 5 and that to date, he has not received any notice to attend a disciplinary hearing, nor has there been any indication that the municipality intends taking disciplinary action against him.

[7] The applicant avers further that the municipality has acted in breach of Regulation 6, which deals with the precautionary suspension of a senior manager. In broad terms, that regulation contemplates that a municipal council may suspend a senior manager on full pay if it is alleged that he or she has committed an act of misconduct, where the council has reason to believe that the presence of the senior manager at the workplace may jeopardise any investigation into the alleged misconduct, endanger the well-being or safety of any person or municipal property, the detriment to stability in the municipality,

interfere with potential witnesses, will commit further acts of misconduct. Prior to suspension, the senior manager must be given an opportunity to make written representations to the council as to why he or she should not be suspended, within seven days of being notified of the council’s decision to suspend him or her. The council must thereafter consider any representation submitted by the senior manager and having regard to the grounds on which a suspension may be effected and the representations, the council may suspend the manager concerned. A senior manager is entitled to be informed in writing of the reasons for his or her suspension which in any event lapses automatically if the disciplinary hearing fails to commence within three months after the date of suspension. The applicant avers that he has not received any notification that the council resolved that his presence at the workplace would jeopardise any investigation or endanger the well-being or safety of any personal municipal property. He has not been permitted the right to make representations as to why he should not be suspended. In his submission, there is no objectively justifiable reason to deny access to the workplace based on the integrity of any pending investigation into misconduct.

[8] The clear right on which the applicant relies is that the respondents had disregarded the requirements stipulated in the regulations. He claims that he is suffering severe reputational harm and that there is no alternative remedy available to him. The applicant particularly disavows any reliance on section 186 of the LRA and it is specifically not his contention that his suspension is unfair. His case, quite simply, is that his suspension is unlawful because it is in breach of the regulations to which he refers and which he describes as ‘subordinate legislation’.

[9] Jurisdiction to be determined solely by reference to the pleadings without regard to the merits of the claim (see Chirwa v Transnet Ltd [2007] ZACC 23; 2008 (4) SA 367 (CC) at par 155, Gcaba v Minister of Safety and Security (2010) 1 SA 238 (CC) para 75). The pleadings in the present instance disclose a case of unlawfulness in the form of a breach by the respondents of the applicable Regulations, characterised by the applicant as subordinate legislation. In other words, the applicant’s claim is not predicated on any alleged unfair labour practice (he expressly disavows any reliance on section 186), the breach of any term of the applicant’s contract of employment, nor is it a claim that seeks to challenge the council’s decision or conduct as a form of administrative action.

[10] The court’s concern regarding jurisdiction is rooted in Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC). Prior to Steenkamp, this court readily granted applications based on similar facts to the present matter - see, for example, Nothnagel v Karoo Hoogland Municipality and Others (2014) 35 ILJ 758 (LC), IMATU obo Shihambi and others v City of Ekurhuleni Metropolitan Municipality and others (J 182/18, 6 June 2018)).

[11] In Phahlane v South African Police Services (J 736/2020, 11 August 2020) this court said the following:

[4] …In Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC), the appellants contended that their dismissals by the respondent were unlawful and invalid because their employer had not complied with time periods established by section 189A of the LRA prior to issuing notices of termination of employment. The majority of the Constitutional Court rejected this contention, on the basis that this court has no jurisdiction to determine the lawfulness of a dismissal. The court observed that there was no provision in the LRA in terms of which an order could be sought declaring a dismissal unlawful or invalid. At paragraph 106 of the judgment, the court said the following:

[106] Section 189A falls within chapter VIII of the LRA. That is the chapter that deals with unfair dismissals. Its heading is: ‘Unfair dismissal and unfair labour practice’. Under the heading appears an indication of which sections fall under the chapter…

Conspicuous by its absence here is a para (c) to the effect that every employee has a right not to be dismissed unlawfully. If this right had been provided for in section 185 or anywhere else in the LRA, it would have enabled an employee who showed that she had been dismissed unlawfully to ask for an order declaring her dismissal invalid. Since a finding that a dismissal is unlawful would be foundational to a declaratory order that the dismissal is invalid, the absence of a provision in the LRA for the right not to be dismissed unlawfully is an indication that the LRA does not contemplate an invalid dismissal is a consequence of a dismissal effected in breach of a provision of the LRA…

And further at paragraph [107]:

This indication is reinforced when one has regard to the definition of “dismissal” in section 186 (1) … Once again the absence of any reference to an unlawful dismissal is telling. It suggests that, if the dismissed employee wishes to raise the unlawfulness of their dismissal, they must categorise it as unfair if they are to obtain relief under the LRA.

[12] And further, with reference to the Edcon judgment:

[5] The effect of this judgment is that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy under the LRA and this court has no jurisdiction to make any determination of unlawfulness. If a remedy is sought under the LRA, the applicant must categorise the alleged unlawfulness as unfairness. By extension, the same principle applies to other forms of employer conduct which are alleged to be unlawful.

[6] This court is a creature of statute. In terms of s 157 (1), subject to the Constitution and s 173, and except where the Labour Relations Act (LRA) provides otherwise, the court has exclusive jurisdiction in respect of all matters that elsewhere in terms of the LRA or any other law are to be determined by the court. In other words, a party referring a dispute to this court for adjudication must necessarily point to a provision of the LRA or some other law that provides for that dispute to be determined by this court. It is incumbent on an applicant referring a matter to this court for adjudication to identify the provision in the LRA, or any other law, which confers jurisdiction on this court to entertain the claim.

[13] Counsel for the applicant submitted that to the extent that Steenkamp concerned a claim that the employer had acted in breach of section 189A of the LRA, that case ought to be distinguished on the basis that in the present instance, the applicant relies on the statutory and other measures that regulate his employment. Put another way, counsel submitted that Steenkamp is not authority for the proposition that this court has no jurisdiction to provide remedies based on an unlawful act. The consequence of Steenkamp, rather, is that the LRA does not provide remedies for unlawful and invalid dismissals (or unlawful suspension). Counsel relied further on the subsequent judgment by the Constitutional Court in Baloyi, in which the court considered whether the High Court has jurisdiction over an allegedly unlawful termination of a fixed-term contract of employment, and judgments by this court in Tshivhandekano v Minister of Mineral Resources and Others (2016) 37 ILJ 2888 (LC), and Chubisi v South African Broadcasting Corporation (SOC) Ltd and others (2021) 42 ILJ 395 (LC)).

[14] Baloyi concerned a dispute in which an employee’s fixed-term contract was subject to a probationary clause, where the employer regarded the employee as unsuitable and refused to confirm her permanent employment. The High Court held that since the employee’s allegations raised a labour dispute envisaged by the Labour Relations Act, it was precluded from hearing the matter. On appeal, in the Constitutional Court, the employee challenged the High Court’s decision that it had no jurisdiction, and sought to

review the decision to terminate her employment and a declaratory order to the effect that her employer has violated her constitutional

obligations under section 181 (2) of the Constitution.

[15] The jurisdiction issue was framed on the following basis:

Simply put, Ms Baloyi asks this Court to answer the following question: does section 157(1), read with section 157 (2) of the LRA, extend the Labour Court’s exclusive jurisdiction over an alleged unlawful termination of a fixed-term contract of employment?

[16] In the course of its judgment, the court noted that section 157 (1) does not afford this court general jurisdiction in employment matters and that consequently, the High Court’s jurisdiction will not be ousted by that section only because the dispute is employment-related. What needs to be determined is whether this court has exclusive jurisdiction in respect of a matter that elsewhere in terms of the LRA or in terms of any other law are required to be determined by this court. The court, by way of example, referred to the Basic Conditions of Employment Act which in section 77 (1), provides that subject to the Constitution and the jurisdiction of the Labour Appeal Court, or where the act provides otherwise, this court has exclusive jurisdiction in respect of all matters in terms of the act. Further, there are matters in both the LRA and the BCEA which recognise that there are certain matters in respect of which the High Court and this court enjoy concurrent jurisdiction. By way of example, section 77 (3) of the BCEA expressly provides that this court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment. The court noted, at paragraph 29 of the judgment:

It is plain from these sections that the parameters of the scope of the exclusive jurisdiction of the Labour Court is not cast in Manichean terms. Section 157 (1) of the LRA does not refer to specific sections of that act as sources of the Labour Court’s exclusive jurisdiction. It only provides that they are to be found elsewhere in the act. In some instances, the location is clear: for example, sections 68 (1), 77 (2), 145 and 191. In others, it is left to the courts to determine whether the matter is one that arises in terms of the LRA and is, in terms of that act, or another law, to be determined solely by the Labour Court.

[17] The court went on to observe that while section 157 (1) does not confer exclusive jurisdiction of this court in every employment-related matter, the Constitutional Court had made clear (in matters such as Chirwa) that this court is a specialist tribunal uniquely qualified to deal with labour related disputes. The concurrent jurisdiction afforded this court and the High Court by the BCEA and section 157 (1) affords litigants an additional right to approach either court with a dispute. Within the ambit of those sections (see the employees paragraph 31 of the judgment). The court then went on to determine whether claim was of such a nature that it was required in terms of the LRA or the BCEA to be determined exclusively by this court. After a consideration of the nature of the employees claims (which the court concluded comprised both public law

and contractual elements), the court held that the High Court’s jurisdiction had been properly engaged and that the High Court had erred in deciding that its jurisdiction had been ousted because the dispute was essentially a labour dispute.

[18] I do not read the judgment in Baloyi to stand in conflict with Edcon, or in any way to call that decision into question. On the contrary, Baloyi affirms that this court does not have jurisdiction in all employment-related disputes, and that its exclusive and concurrent jurisdiction is engaged only where legislation mandates it. What is significant about the judgment is the recognition that in the labour context, more often than not, more than one potential cause of action arises as a result of a labour dispute, and that a litigant must choose the course of action she wishes to pursue and prepare her pleadings accordingly.

[19] In Tshivhandekano, the court was similarly faced with a claim in contract. In paragraph 11 of the judgment, the court made clear that since Steenkamp, this court ‘should not entertain claims based on the invalidity of a dismissal’. The court went on to note that in Steenkamp, ‘the Constitutional Court was not concerned with the court’s exercise of its powers to determine contractual disputes under section 77 (3) of the Basic Conditions of Employment Act 75 of 1977 (the BCEA) nor was it concerned with the exercise of the court powers to ‘review any decision taken or any act performed by the State in its capacity as an employer on such grounds is permissible in law’ as provided for in section 158 (1)(h)’. The applicant was afforded relief ultimately on the basis that the decision to dismiss him was both ultra the race and in breach of his contract of employment. In effect, the claim was one for specific performance of the contract in validly terminated.

[20] In Chubisi, the applicant sought an order to the effect that the termination of her employment by the SABC had been unlawful and of no force and effect. The court granted an order to that effect, on the basis that the applicant had established, albeit in rely, that her claim was contractual in nature (see paragraph 34 of the judgment).

[21] In the present instance, the applicant disavows any reliance on any of the rights established by the LRA. He does not assert that his suspension constitutes an unfair labour practice as defined by section 186 (2)(b) of the LRA. The applicant makes no appeal to section 77 (3) of the BCEA, nor does he assert any breach of his employment contract by his employer. The appeal in the heads of argument filed on the applicant’s behalf to both section 77(3) of the BCEA and section 157 (2)(a) of the LRA have no foundation in the pleadings. It is not sufficient, as the applicant contends, for the court examine ‘the true nature of the dispute on the facts pleaded’ to establish jurisdiction. The applicant’s pleadings must disclose a cause of action that brings his claim within the ambit of the court’s jurisdiction. The applicant has been unable to point to any provision in the LRA or any other statute that confers jurisdiction on this court to determine a dispute cast only in the terms of unlawfulness on account of a breach of subordinate legislation.

[22] In Gcaba (supra) the Constitutional Court confirmed that ‘if the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction’ (at paragraph 75). The corollary is that if the pleadings disclose that the applicant is not asserting a claim in terms of the LRA (or any other law) that is to be determined exclusively by this court, or a claim that engages this court’s concurrent constitutional jurisdiction under section 157 (2), then this court has no jurisdiction. Given that the applicant in the present instance asserts neither, I fail to appreciate the basis on which this court has jurisdiction to entertain the application.

[23] Finally, in relation to costs, the court has a broad discretion in terms of section 162 to make orders for costs according to the requirements of the law and fairness. Ordinarily, this court is slow to make orders for costs in circumstances where the parties are collective bargaining partners and aware the effect of an order for costs may be to prejudice that relationship. It is unlikely that the present dispute will be disposed of in these proceedings, and further engagement between the parties is entirely possible. Also of some significance in these proceedings is the fact that the respondents did not take issue with the jurisdiction of the court despite the fact that they were fully aware of the applicant’s cause of action. In the circumstances, it seems to me that the requirements of the law and fairness are best served by there being no order as to

costs.

I make the following order:

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES

For the applicant: Adv T du Preez, instructed by Kramer Weihmann Inc

For the respondents: Mr N Voyi, Ndumiso Voyi Inc.