South African Municipal Workers Union obo Mgcineni v South African Local Government Bargaining Council and Others (JR749/22) [2024] ZALCJHB 244; (2024) 45 ILJ 2367 (LC); [2024] 11 BLLR 1198 (LC) (20 June 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JR749/22

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION Applicant

OBO NTOYAKHE GEORGE MGCINENI

and

SOUTH AFRICAN LOCAL GOVERNMENT

First Respondent

BARGAINING COUNCIL

LEON JOUBERT N.O.

Second Respondent

UMSOBOMVU LOCAL MUNICIPALIT Third Respondent

Heard: 18 June 2024

Delivered: 20 June 2024

Summary: Application to review and set aside jurisdictional ruling. Applicant failing to establish that the ruling was incorrect. The applicant’s member is deemed, by operation of law, to have resigned following his election to the position of councillor.

JUDGMENT

DANIELS J

Introduction

[1] This is an opposed application, brought to review and set aside the jurisdictional ruling made by the second respondent. The application had been enrolled for 22 May; but was postponed to 18 June with a directive that the applicant file an application for condonation for the late filing of the review. Costs were reserved.

[2] By 18 June, the applicant had filed an application for condonation, which was opposed by the third respondent. The application for condonation was heard and determined first. Among other things, I considered the following: that the period of the delay was short (two court days), there was no material prejudice to the third respondent, the explanation for the delay was reasonable, and the applicant had reasonable prospects of success. The prospects of success were addressed by the applicant under the rubric of “interests of justice”. In all the circumstances, in the exercise of my discretion, I held that the interests of justice weighed in favour of granting condonation. However, in light of the fact that the applicant had not sought condonation at the outset, the applicant was ordered to pay the third respondent’s costs in relation to 22 May.

[3] In the jurisdictional ruling presently under scrutiny, the second respondent (“arbitrator”) found that the third respondent (“Municipality” or “Council”) had not dismissed its former employee, Mr Mgcineni. Instead, the arbitrator found that the employment contract of Mr Mgcineni had terminated, by operation of law, upon his election as a local councillor.

[4] I begin with a brief summary of the material facts.

Material facts

[5] Prior to the termination of his employment contract, Mr Ntoyakhe Mgcineni (“Mgcineni”) a member of the applicant, was employed by the Municipality as Section Head: Community Development.

[6] Prior to the local government elections of 2021, Mgcineni joined the Umsobomvu Residents Association (“URA”) which would contest the elections. His name was included on its list of candidates, and appeared in the second position on the URA list. The list was submitted to the Independent Electoral Commission (“IEC”) during the nominations process.

[7] The following events occurred on 1 November 2021:

7.1 The Local Government Municipal Structures Amendment Act No. 3 of 2021[1] (“Amendment Act”) commenced.[2]

7.2 The Amendment Act amended the Local Government: Municipal Structures Act No. 117 of 1998 (hereafter the “Structures Act”) in two important respects, which are critical to this dispute:

7.2.1 First, after the amendment[3] section 23(5) of the Structures Act provided that an elected councillor is deemed to assume office on the date of the declaration of the election results,

7.2.2 Second, after the amendment[4] Schedule 1 (Part 4, item 20) of the Structures Act provided that parties contesting the elections could not supplement or change their list of candidates between the date of the closure of nominations and the day following the first council meeting.

[8] Later that same day (1 November) the elections were held, and the IEC began to count the votes.

[9] By 2 November, an initial count of the votes revealed that the URA had received sufficient votes for at least two seats within the Council.

[10] On 3 November, Mgcineni addressed a letter to the URA advising it that he wished to withdraw his name from its list of candidates. It seems he was unaware of the commencement of the Amendment Act and its implications, as explained in para 7.2.2 above.

[11] On 4 November, the URA accepted the notice of withdrawal from Mgcineni, and addressed a letter to the Municipality advising it that he had been withdrawn and replaced by another. The URA also advised the IEC of this development. It appears that the URA was also unaware of the commencement of the Amendment Act and its implications, as explained in para 7.2.2 above.

[12] On 8 November, Mgcineni attended the Municipality to tender his services. Mr Kapp, his supervisor, advised him that he could not be permitted to work because he had been elected as a councillor. Mgcineni disputed this and advised Kapp that he had withdrawn as a candidate for the URA on 3 November.

[13] On 9 November, the following occurred:

13.1 The IEC published, in the GG,[5] the results of the local government elections. Mgcineni was identified as an elected councillor of the Municipality.

13.2 The Municipality addressed a letter to Mgcineni advising him that he was deemed to have assumed office on 9 November, and he was deemed to have resigned the day before (i.e. 8 November). The Municipality referred to Regulations[6] to the Structures Act specifically section 3(5) which stated:

“… a staff member who has been elected as a member of the ….municipal council shall be deemed to have resigned from the employer concerned with effect from the date immediately before the date she or he assumes office” (Own emphasis)

13.3 In a subsequent letter addressed to SAMWU, on 11 November, the Municipality further explained its understanding of the legal position. When the letters from the Municipality, dated 9 and 11 November, are considered together, it is clear that the position of the Municipality was that Mgcineni was not dismissed, but he was deemed to have resigned on 8 November because:

13.3.1 The URA was not permitted to supplement or change its list of candidates between the date of the closure of nominations and the day following the first council meeting – no council meeting had been convened as of 11 November.

13.3.2 An elected councillor such as Mgcineni was deemed to have assumed office upon the declaration of the election results. The election results were published on 9 November, and Mgcineni was therefore deemed to have assumed office on that day.

13.3.3 A staff member who is elected as a member of the Council is deemed to have resigned from the Municipality on the day immediately before he assumed office.[7] Because Mgcineni was deemed to have assumed office on 9 November, he was deemed to have resigned the day before, 8 November.

[14] Mgcineni and SAMWU did not accept the Municipality’s understanding of the law. They referred a dispute to the South

African Local Government Bargaining Council (“SALGBC”) alleging that Mgcineni had been dismissed and that his dismissal was unfair. At the SALGBC proceedings, the Municipality raised a jurisdictional point, contending that Mgcineni had not been dismissed. Two bundles of documents were presented at the SALGBC, one from the applicant and another from the third respondent. These

bundles included all the documents referred in paras 1 to 13 above. The arbitrator heard oral submissions, considered the documents, and delivered his ruling. The arbitrator held that Mgcineni had not been dismissed by the Municipality and instead his employment contract had terminated by operation of law.

Legal principles and analysis

[15] It is trite that the CCMA and Bargaining Councils are not courts of law, but are administrative bodies charged with the execution of statutory functions. As creatures of statute, the jurisdiction of the CCMA and Bargaining Councils are governed by the statute (or statutes) which empower them.

[16] In SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others[8] (“SA Rugby”) the court set out the position as follows:

[40] The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. Whether it has jurisdiction or not in a particular matter is a matter to be decided by the Labour Court. …. This means that, in the context of this case, the CCMA may not grant itself jurisdiction which it does not have. Nor may it deprive itself of jurisdiction by making a wrong finding that it lacks jurisdiction which it actually has. There is, however, nothing wrong with the CCMA enquiring whether it has jurisdiction in a particular matter provided it is understood that it does so for purposes of convenience and not because its decision on such an issue is binding in law on the parties. (Own emphasis)

[17] In Bombardier Transportation (Pty) Ltd v Mtiya NO & others[9] Van Niekerk J (as he was then) stated as follows:

“13] The first step in this approach is to recognize that many 'jurisdictional issues' raised by parties in conciliation proceedings are not jurisdictional questions in the true sense. ….

The only true jurisdictional questions that are likely to arise at the conciliation phase are whether the referring party referred the dispute within the time-limit prescribed by s191(1)(b), whether the parties fall within the registered scope of a bargaining council that has jurisdiction over the parties to the dispute to the exclusion of the CCMA, and perhaps whether the dispute concerns an employment related matter at all. The distinction to be drawn is one between facts that the legislature has decided must necessarily exist for a tribunal to have the power to act (and without which the tribunal has no such power) and facts that the legislature has decided must be shown to exist by a party to proceedings before the tribunal, the existence of which may be determined by the tribunal in the course of exercising its statutory powers. The power given to the CCMA to determine the fairness of a dismissal includes the power to determine whether or not an applicant was an employee, and whether she was dismissed. These questions ordinarily fall to be determined in the course of the CCMA's adjudication functions. It follows that a conciliating commissioner is under no obligation to determine them at the conciliation phase.” (Own emphasis)

[18] To summarise, the existence of a dismissal (in a dismissal dispute) is a true jurisdictional issue. Furthermore, administrative

tribunals, such as the SALGBC, cannot finally determine their own jurisdiction, and their findings on jurisdictional facts are

provisional, made for the sake of convenience. The test on review, in relation to jurisdictional findings, is one of correctness, not reasonableness. This Court must therefore determine whether, objectively, the SALGBC had jurisdiction in relation to the dispute

that had been referred to it by the applicant. This Court must determine whether, objectively speaking, Mgcineni was dismissed by the Municipality.

[19] In accordance with section 192(1) of the Labour Relations Act No. 66 of 1995 as amended (“LRA”) the employee bears the onus of proving the dismissal.

[20] For the reasons set out below, I find that Mgcineni was not dismissed by the Municipality:

20.1 With effect from 1 November, Schedule 1 (item 20) of the Structures Act did not permit a party to alter its list in the period between the finalisation of the nomination process and the date of the first Council meeting. The language used in the Schedule permits no other interpretation.[10] The purpose is to ensure that the electorate is able to identity the candidates prior to the election. Accordingly, when Mgcineni and the URA sought to amend the list, on 3 and 4 November, this was impermissible.

20.2 The regulations[11] to the Structures Act state that elected councillors are deemed to assume office upon the declaration of the election results. The results were declared on 9 November. Accordingly, on that day, Mgcineni was deemed to have assumed office. As already explained, his earlier attempt to withdraw as a URA candidate was impermissible.

20.3 Finally, the legislative provisions provide that staff of the Municipality are deemed to resign on the day immediately before they assumed office.[12] Accordingly, in this case, Mgcineni was deemed to have resigned from the Municipality on 8 November.

[21] The applicant does not explain why the arbitrator’s understanding of the legislative provisions is wrong. The legislative provisions were drafted in simple and plain terms. In my view, these provisions are not capable of any alternative meaning. In circumstances where the legislative provisions are clear there is no interpretative exercise.[13] Legislation cannot mean whatever a party desires. The meaning is first extracted by reference to the language used and the ordinary meaning of such language. It has been said that:

“A statute has no elasticity . . . it may not be stretched to meet a case for which provision has clearly not been made . . . if the plain and unambiguous meaning of a provision in an Act is departed from, a court does not construe it, but alters it.” [14]

[22] In CUSA v Tao Ying Metal Industries and Others[15] our apex court held that the commissioner must apply his or her mind to the material issues and the parties must be afforded a fair trial of the issues. Here, the applicant contends that it was denied a fair trial of the issues because:

22.1 The arbitrator did not call for oral evidence, which was necessary to determine the factual disputes.

22.2 The applicant was unfairly denied an opportunity to call witnesses.

[23] The submissions in para 22 above have no merit. There were no material factual disputes. The facts set out in paragraphs 5 to 13 above were common cause. It is apparent from the transcript of the arbitration that the applicant made only fleeting and vague references to oral evidence. Importantly, at no time whatsoever, did the applicant inform the arbitrator that it wished to call a witness or witnesses. In any event, the issue to be determined was a legal one. The events on 8 November (which related to the manner that Mgcineni was turned away) and the letter from the Municipality dated 9 November (which the applicant says is proof of his dismissal) could not alter the statutory presumptions in the Structures Act and its regulations.

[24] Section 186(1)(a) of the LRA defines a “dismissal” as a termination, by the employer, of an employment contract, with or without notice. In National Union of Leather Workers v Barnard NO & another[16] the LAC considered that a dismissal, for the purposes of section 186(1)(a), requires that the employer engage in an act which brings

the contract of employment to an end in a manner recognized as valid by the law. In that matter, the company took a resolution to wind up and that constituted an act which brought about the termination of the employment contract. If however the company was

wound up by way of compulsory liquidation, through an act of a creditor, there would be no dismissal. In Nogcantsi v Mnquma Local Municipality & others[17] the LAC recorded that section 186(1)(a) required an act by the employer but in performing the act there must have been some form of intention to cause the dismissal.

[25] In this matter, as the arbitrator correctly pointed out, there was no act by the employer, the Municipality. Instead, it was the conduct of Mgcineni which led directly to the termination of his employment contract, by operation of law. Unfortunately, Mgcineni failed to seek and obtain proper advice before he decided he wished to become a councillor. Then, once again, he failed to seek and obtain proper advice before deciding to withdraw as a councillor. In both instances, Mgcineni is the author of his own misfortune. The outcome may be unfortunate; but this Court, like the employer, is bound by the law.

Conclusion

[26] In the circumstances, for the reasons set out above, the application to review and set aside the jurisdictional ruling is dismissed. There is no order as to costs of the application. However, as previously mentioned, the applicant is required to bear the costs of 22 May 2024.

RN Daniels

Judge of the Labour Court of South Africa

Appearances:

For the Applicant

Adv. M Chauke

Instructed by: Tati Attorneys

For the Third Respondent:

JF Hayward

Official of NEASA

[1] The Amendment Act was published in GG No 44647 on 12 June 2021

[2] The Amendment Act commenced on 1 November 2021 – see Proc. 37 of 2021 published in GG 45305 (11 October 2021)

[3] With effect from 1 November 2021, section 23(5) of the Structures Act read: “An elected councillor is deemed to assume office on the date of the declaration of the results of an election by the Electoral Commission”

[4] With effect from 1 November 2021, the Structures Act, Schedule 1, Part 4, item 20(1)(a) read: “A party may not supplement or change its list from the date of the closure of nomination of candidates for an election until a day after the date of the first council meeting”.

[4] With effect from 1 November 2021, the Structures Act, Schedule 1, Part 4, item 20(1)(a) read:

“A party may not supplement or change its list from the date of the closure of nomination of candidates for an election until a day after the date of the first council meeting”.

[5] GN R 653 GG 45447 of 9 November 2021

[6] GN R 210 GG 34095 of 11 March 2011 states: “Subject to section 21(2) of the Local Government: Municipal Structures Act, 1998, a

staff member who has been.elected as a member of the National Assembly, aprovincial

legislature or a municipal council shall be deemed to have resigned from the employer

concerned with effect from the date immediately before the date she or he assumes office.”

[6] GN R 210 GG 34095 of 11 March 2011 states:

“Subject to section 21(2) of the Local Government: Municipal Structures Act, 1998, a

staff member who has been.elected as a member of the National Assembly, aprovincial

legislature or a municipal council shall be deemed to have resigned from the employer

concerned with effect from the date immediately before the date she or he assumes

office.”

[7] See fn. 3 above

[8] (2008) 29 ILJ 2218 (LAC) at para 40

[9] (2010) 31 ILJ 2065 (LC) at para 13

[10] See fn. 4

[11] See fn. 3

[12] See fn. 6

[13] Even if the legislative provisions invited interpretation, the inevitable point of departure is the language used. See Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para [18] where the court said: “Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.”

[14] EA Kellaway Principles of Legal Interpretation (LexisNexis, Butterworths 1995) at 140

[15] (2008) 29 ILJ 2461 (CC)

[16] (2001) 22 ILJ 2290 (LAC)

[17] (2017) 38 ILJ 595 (LAC)