South African Municipal Workers Union obo Mgcineni v South African Local Government Bargaining Council ands Others (JR749/22) [2024] ZALCJHB 370 (27 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR749/22

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION OBO NTOYAKHE GEORGE MGCINENI Applicant and SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL First Respondent LEON JOUBERT N.O. Second Respondent UMSOBOMVU LOCAL MUNICIPALITY Third Respondent

Delivered: 27 September 2024

Summary: Application for leave to appeal. Application dismissed in chambers.

JUDGMENT

DANIELS J

Introduction

[1] This is an application for leave to appeal against my judgment handed down on 20 June 2024. I found that the jurisdictional ruling of the second respondent is correct, and the third respondent had not dismissed the applicant because he was deemed to have resigned because of section 3(5) of the Regulations Regarding the Participation of Municipal Staff Members in Elections published in GN R210 GG 34095 on 10 March 2011 (hereafter the “Regulations”).

Material facts

[2] It is necessary to briefly summarize the facts:

2.1 Mr Mgcineni, an employee of the Municipality, joined the Umsobomvu Residents Association (hereafter the “URA”) prior to the local government elections in 2021. His name was included on its list of URA candidates, and appeared in the second position on its proportional representation list.

2.2 On 1 November 2021 the Local Government Municipal Structures Amendment Act No. 3 of 2021[1] (hereafter the “Amendment Act”) commenced.[2] The Amendment Act amended the Local Government: Municipal Structures Act of 1998 (hereafter the “Structures Act”) in important respects:

2.2.1 Section 23(5) of the Structures Act provides that an elected councillor is deemed to assume office on the date of the declaration of the election results by the Electoral Commission,

2.2.2 Item 20 of Schedule 1 provides that any party contesting the elections cannot supplement or change its list of candidates between the date of the closure of nominations and the day following the first council meeting,

2.2.3 Item 19 of Schedule 1 provides inter alia that a person who is a candidate on a party list ceases to be a candidate when that person assumes office as a councillor or that person resigns from the list by written notice to the chief electoral officer.

2.3 The local government elections were held on 1 November 2021.

2.4 On 3 November, Mgcineni addressed a letter to the URA inter alia stating: “I request you my Organisation to withdraw my candidacy or my name on the submitted PR list”.

2.5 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.

2.6 On 8 November, Mgcineni attended the Municipality to tender his services. He was advised that he could not be permitted to work because he had been elected as a councillor.

2.7 On 9 November, the IEC published the results of the elections in GN 653 GG45447. Mgcineni was identified as an elected councillor of the Municipality. Later that same day, 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 from his employment on 8 November in accordance with section 3(5) of the Regulations.[3]

2.8 On 24 November, the Municipality addressed a letter to the IEC advising that the URA had resolved to change the names of candidates on its proportional representation list. The IEC acknowledged receipt of the letter and notified the Municipality inter alia that Mgcineni ceased to hold the office of councillor.

Legal principles and analysis

2.9 In J & L Lining (Pty) Ltd v National Union of Metalworkers of SA and Others[4] this court summarized the legal position when seeking leave to appeal as follows:

‘Leave to appeal is not there for the asking. When deciding whether to grant leave to appeal to the Labour Appeal Court, the Labour Court must determine whether there is a reasonable prospect that another court would come to a different conclusion to that of the court a quo, or in other words, whether the appeal would have a reasonable prospect of success. This was summarised in SA Clothing & Textile Workers Union & others v Stephead Military Headwear CC, as follows:

‘It is trite that for an application for leave to appeal to be successful, it is required of the party seeking such leave to demonstrate that there are reasonable prospects that another court, in this instance, the Labour Appeal Court, would come to a different conclusion to that reached in the judgment that is sought to be taken on appeal.’’ (Own emphasis)

2.10 As to the meaning of ‘reasonable prospects of success’, the court in Member of the Executive Council for Health, Eastern Cape v Mkhitha and another[5] said:

‘Once again it is necessary to say that leave to appeal, especially to this Court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.

An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.’ (Own emphasis)

Analysis of applicant’s submissions

[3] The applicant appears to accept that the URA was not entitled to amend its list of candidates between the date of the closure of nominations and the first council meeting, in accordance with item 20(1) of Schedule 1 to the Structures Act.

[4] The applicant submits that his notice dated 3 November, directed to the URA, also constituted notice to the chief electoral officer in terms of item 19(b) of Schedule 1 to the Structures Act. Self-evidently, this is incorrect. In any event, as the third

respondent submits, by 3 November, the applicant was no longer merely a candidate. The election had been held, and he was a councillor-elect. There are no prospects of success here.

[5] The applicant claims that the Structures Act violates his constitutional right to fair labour practices. This challenge was not raised during the review application itself, and is raised for the first time on appeal. This is improper. Furthermore, ordinarily, when the content of legislation is the subject of constitutional challenge, the executive must be cited.[6]

[6] The applicant alleges that this matter raises the conflicting jurisprudence of this court as regards automatic terminations under the Public Service Act, the South African Police Services Act and the Employment of Educators Act. The ratio of the judgments in matters concerning those Acts cannot simply be imposed on this matter. The Structures Act deals directly with the integrity and functioning of our democracy, whereas those Acts do not. In any event, such arguments should properly have been raised in the context of a constitutional challenge.

[7] The further attacks on the judgment of this are set out in extremely broad strokes, are without substance, and therefore do not merit a response.

Conclusion

[8] The application is dismissed. There is no order on costs.

Reynaud Daniels

Judge of the Labour Court of South Africa

[1] GG No 44647 of 12 June 2021

[2] Proc. 37 of 2021 published in GG 45305 on 11 October 2021

[3] GN R 210 GG 34095 of 11 March 2011

[4] (2019) 40 ILJ 1303 (LC) at para 5.

[5] [2016] JOL 36940 (SCA) at paras 16 – 17.

[6] Helen Suzman Foundation v President of the Republic of South Africa and others 2015 (2) SA 1 (CC) at para 13