South African Municipal Workers Union (SAMWU) obo Mollo and Another v South African Local Government Bargaining Council (SALGBC) and Others (JR1005/13) [2016] ZALCJHB 119 (24 March 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no. JR1005/13

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION

Applicant

(SAMWU) obo SD MOLLO & PE NAILE

and

SOUTH AFRICAN LOCAL GOVERNMENT

First Respondent

BARGAINING COUNCIL (SALGBC)

SELLO MOPHAKI N.O.

Second Respondent

DIHLABENG LOCAL MUNICIPALITY

Third Respondent

Heard: 13 January 2016

Delivered: 24 March 2016

POTGIETER AJ

Background facts and arguments

[1] Dineo Sannah Mollo (“Mollo”) and Pontsho Excellent Naile (“Naile”) (herein represented by the Applicant (SAMWU) were previously employed by the Third Respondent, the Dihlabeng Local Municipality (“the Municipality”). Mollo was appointed as Secretary of the Council Whip of the Municipality for a fixed term period “linked to the term of Office of the Speaker”. Similarly, Naile was appointed as Council Admin Support for a fixed term period “linked to the Office of the Speaker”. It is common cause on the pleadings between the parties, as was the case during the arbitration proceedings, that Mollo’s

appointment letter erroneously referred to the term of her appointment being linked to “the office of the Speaker” as opposed to being linked to “the office of the Council Whip” and that it stood to be rectified in this regard. For ease of reference I shall refer herein below to Mollo, Naile and SAMWU

jointly as “the Applicants”.

[2] Apart from having different designations, the remainder of the terms of both letters of appointment was identical. Naile accepted (and implemented) but failed to sign his letter of appointment whereas Mollo had signed her letter of appointment.

[3] It is furthermore common cause that the Municipality terminated the employment of both Mollo and Naile on notice and that such termination was effective from 31 October 2012. Termination occurred subsequent to the resignation of the incumbent filling the position of the Chief Whip (Mandla Radebe) and of the incumbent filling the position of the Speaker of the Council (Angie Mosie). Both of these resignations occurred during September 2012.

[4] The premise of the Applicants’ review is that the Second Respondent erred in concluding that the fixed term contracts of Mollo and Naile were both linked to the terms of office of the incumbents filling the above two positions, that termination was lawful in terms of the contracts and that no dismissals had occurred. The Applicants argue further that termination by the Municipality had occurred prematurely and prior to the expiration of the term of office of the relevant office bearers.

[5] The Applicants requested condonation in relation to the late filing of their review application. Their application in this regard was not opposed. Condonation was granted on the date of the hearing due to the fact that the late filing had not created any material prejudice to the Third Respondent and due to the fact further that the Applicants had explained that they had not been in willful default in delaying the launching of the application. The period of delay was moreover not extensive.

[6] The dispute is centered on the interpretation of the resolutive condition contained in the fixed term contracts of Mollo and Naile

respectively. A resolutive condition terminates all or some of the obligations flowing from the contract upon the occurrence of a future event.

[7] The Applicants argue that the Second Respondent made a jurisdictional ruling, which is subject to review by this Court on objectively

justifiable grounds and not the reasonableness test approach. In this regard they relied upon the decision of Zondi, AJA in De Milander v Member of the Executive Council for the Department of Finance: Eastern Cape and Others 2013 (34) ILJ 1427 (LAC) at pages 1435 and 1436.

[8] Mr. van Aswegen pointed out to the Court that when dealing with a written recordal of a contract between parties, that an adjudicator is not to consider extrinsic evidence on its terms so as to determine the meaning in terms of the parol evidence rule. The first port of call is accordingly the language of the document. Only if after looking at the language it is found that the document is ambiguous, are the secondary rules of interpretation to be applied. A commissioner would then look at evidence and surrounding circumstances to determine the meaning. The Second Respondent in the present instance however made no dispositive ruling to the effect that the contracts were ambiguous. Extrinsic evidence should accordingly not have been allowed.

[9] The Applicants submit that the appointment letters state that the appointment of the Applicants shall be for the term of the office of the Speaker and not the term of the Speaker. The term of office of each of the office bearers and of the Municipal Council for whom Mollo and Naile were appointed, was five years. The Applicants relied on the relevant provisions of the Local Government Municipal Structures Act, 117 of 1998 in this regard. In terms of this legislation the term of office of the Councilor is linked to the term of office of the Municipal Council. The resolutive conditions included in the fixed term contracts of Mollo and Naile provide that the appointments shall be for the “terms of office”. The Applicants made the further point that if the Municipality intended to make the appointments subject to the actions of the incumbent of the office, they could have done so by including the appropriate wording into the letters of appointment. They failed to do so.

[10] The Applicants concluded their arguments by stating that the wording of the letters of appointment was clear and unambiguous and that the Second Respondent was wrong in allowing in terms thereof evidence in relation to surrounding circumstances and in not applying his mind to the resolutive condition as it stood.

[11] The Third Respondent submits that the Second Respondent had a duty to decide whether Mollo and Naile had been dismissed. The Third Respondent relied upon SA Rugby Players Association and Others v SA Rugby (Pty) Limited and Others; SA Rugby (Pty) Limited v SA Rugby Players Association and Another (2008) 29 ILJ 2218 (LAC) and upon Asara Wine Estate and Hotel (Pty) Limited v Van Rooyen and Others (2012) 33 ILJ 363 (LC) in relation to the test of review that finds application where the Court must decide whether a commissioner’s ruling on jurisdiction and dismissal must be set aside. The test according to these decisions is not whether the conclusion of the commissioner was so unreasonable that no commissioner could have come to the same conclusion, but whether the commissioner correctly found that the employee had or had not been dismissed.

[12] The Third Respondent submitted that the Second Respondent was correct in referring to the advertisements relevant to the positions of Mollo and Naile and in taking into consideration that at the very least there had been a tacit acceptance of the contractual provisions to the extent that the terms of the employment were linked to the term of the office of the incumbent in the position referred to in the contracts. It is further argued that the absence of any specific reference to the five year period within the contracts coincides with the submissions of Mollo’s representative during the arbitration proceedings that she understood that her employment was linked to the term of the incumbent. It follows that her contract terminated upon the resignation of Mr. Mandla Radebe and that there was no dismissal.

Analysis

[13] In terms of the decision of KPMG Chartered Accountants (SA) v Securefin Limited and Another 2009 (4) SA 399 (SCA), any person who is tasked with interpreting a contract and applying the parol evidence rule must first read and attach the ordinary grammatical meaning to the words[1] of the contract.

[14] The second step is to determine the context within which the contract was drafted to understand the grammatical meaning thereof. Evidence regarding the circumstances that give a direct indication of the parties’ collective intention when the contract was negotiated and concluded, may be accepted and taken into consideration in interpreting the contract.

[15] The starting point is accordingly to assess the contracts of employment, in particular the wording of the resolutive condition contained

therein and which reads as follows:

“…appointed in a fixed term capacity linked to the term of office of the Speaker (Council Whip) at Dihlabeng Local Municipality” appearing under the clause titled “Term of Employment”.

[16] The question is whether this clause (on a plain reading thereof and following the steps above) allows the Third Respondent to terminate

Mollo and Naile’s contracts of employment in the event of a resignation (or vacation) by the incumbents holding the office of the Council Whip and Speaker respectively and in circumstances where the term of the office has not come to an end.

[17] To determine the context within which the contract was drafted and to understand its meaning, it is self-explanatory in terms of the above principles enunciated in the KPMG-decision that one should have regard to the relevant provisions of the Local Government Municipal Structures Act 117 of 1998 (“the Structures Act”). The term of office of each of the office bearers is defined in terms thereof to be a term of five years[2] and runs concurrently with that of the Municipal Council. Vacation (including resignation) is dealt with in section 27. A term of office is not affected by a vacation in terms of the Structures Act. Both Mollo and Naile’s appointments and the duration of their contracts were on a proper interpretation linked to the terms of office of the Municipal Officers, including the Council Whip and the Speaker. Nothing contained in the adverts leading up to the appointments of Mollo and Naile[3] indicates that their appointments would be linked to that of the incumbents occupying the positions of the Speaker and the Council

Whip respectively.

[18] Since Naile (in terms of the evidence led at the arbitration) tacitly accepted and implemented his contract of employment, the wording

thereof applies to him. It matters not that he (in terms of this evidence) did not sign the document. This evidence presented during

the arbitration results in the Second Respondent’s award affecting both employees equally and on them being equally dealt with in terms of these proceedings. Neither the Applicants nor the Third Respondent appear to take issue with this finding reached by the Second Respondent. Naile is in any event certainly not in a position to argue that he was appointed on a permanent basis after having responded to the advert, which makes it clear that the appointment is for a fixed period.

[19] For purposes of interpreting the relevant wording of the contracts of employment, I am compelled (in terms of the first step above) to apply the principle that the language used in the document is to be given its ordinary grammatical meaning unless this would lead to some uncertainty or repugnancy or inconsistency with the rest of the document[4].

[20] The court is also to construe the contract within its context and give consideration to the underlying purpose for the mechanics of the contract.

[21] For the purposes of contextualizing the terms of employment of Mollo and Naile Mr. Posholi testified during the arbitration proceedings that it was the practice of the Municipality to link the term of office of persons in the assisting position of the employees to the term and service of the Council Whip and Speaker respectively. Mr. Posholi elaborated further that when their term comes to an end or when they resign normally the contract of secretary also becomes terminated. When the next Chief Whip or other Councilor is appointed, he or she has a choice to re-appoint the same individuals on a further fixed term contract or to appoint his or her own staff on a fixed term contract. In both cases the appointment will be linked to the terms of office of the incumbent individuals appointed to the position. Posholi however did not testify that this was also the understanding of Mollo and Naile when they entered into the contract. His version was moreover not put to Mollo under cross-examination. Mollo testified[5] in no uncertain terms that she understood the contract to mean that her own contract would come to an end at the end of the term of the office of the Chief Whip, which would endure simultaneously with the term of the Municipal Council, being five years.

[22] During the course of the Arbitration proceedings and within the opening statement of the Applicant’s trade union representative the question was put by the Commissioner to the Applicant’s representative that:

“ … her understanding was that her contract or the term of her contract was actually linked to the term of the office bearer that she was serving and the said office bearer was Mandla Radebe.”

[23] The Applicant’s representative responded to the above question in the affirmative. However, this was not Mollo’s evidence. In fact, she confirmed quite the contrary as indicated above.

Conclusion

[24] Based on what is set out above, I cannot find that the ordinary grammatical meaning of the relevant words of Mollo and Naile’s contracts means anything other than that they were employed on fixed term contracts linked to the term of the office of the relevant office bearer, be it the Speaker or the Council Whip. The relevant provisions of the Structures Act, the relevant adverts and the

evidence of Mollo in relation to her understanding of the joint intention of the parties at the time that the contracts were entered

into inform this finding further.

[25] Apart from the evidence of Posholi, which was not put to Mollo and which does not confirm the common intention of the parties, there is simply no reason to interpret the contract as being limited to the duration of the employment of the particular incumbent occupying the position of the Speaker or the Council Whip. The adverts moreover speak to general secretarial duties and not to any duties linked to any particular person or personalised duties.

[26] The test on review where a commissioner determined jurisdiction, is not whether the conclusion of the commissioner was so unreasonable that no commissioner could have come to the same conclusion, but whether the commissioner correctly found that the employee had or had not been dismissed. The applicable case law is quoted hereinabove.

[27] It follows that the Second Respondent was wrong in finding that there was no dismissal and that the contracts of Mollo and Naile came to an end by operation of law.

[28] The fact that Naile was not present during the hearing is no bar to the Second Respondent having made a ruling in his favour. He was duly represented at the hearing by the Applicant union (SAMWU) and the evidence presented at the hearing by Mollo applies to the adjudication of his application by the Second Respondent.

[29] Mr. Venter argued that the Applicants were barred from presenting argument on a different ground of review, having pleaded alternative grounds of review in terms of their affidavits and Notice of Motion filed. Having regard to the decision of CTP Limited t/a Caxton Newspaper Division v Mphaphuli NO and Others (2015) 36 ILJ, where the court held that a jurisdictional decision had been both correct and reasonable, I am not prepared to disallow the Applicants’

arguments raised in terms of their Supplementary Heads of Argument.

[30] In relation to the decision of Potgieter v George Municipality (2011) 32 ILJ 104, I find that the facts were distinguishable from the circumstances underlying this review. The Second Respondent was accordingly also incorrect in placing reliance thereon. In Potgieter’s case, the contract made specific reference to the term of the incumbent occupying the position of the office bearer (one Petrus) (“the current Mayor”) and linked the term of employment of Potgieter to the incumbent’s term of employment.

[31] Consequent upon the above, I make the following order:

31.1 The award made by the Second Respondent Sello Mophaki N.O. on 26 March 2013 is reviewed and set aside;

31.2 The dispute pertaining to the alleged unfair dismissal of SD Mollo and PE Naile from the employment of the Third Respondent on 31 October 2012, is referred back to the First Respondent for arbitration by a Commissioner other than the Second Respondent;

31.3 The Third Respondent is ordered to pay the Applicants’ costs of the application.

________________________

Potgieter AJ

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicants:

Advocate WA van Aswegen

Instructed by:

Kramer Weihmann Joubert Attorneys

For the Third Respondent: Advocate F Venter

Instructed by:

Breytenbach Mavuso Inc.

[1] See Cash In CC v OK Bazaars (1929) Limited [1993] ZASCA 204; 1994 (2) SA 347 AD.

[2] Chapter 3, Pat 1. See section 24 and section 26.

[3] Pages 12 to 15 of the paginated bundle.

[4] Coopers & Lybrandt and Others 1995

[5] See pages 19 and 22 of the transcribed record.