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                                                                        NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)                   

                                                                                    Case no: 2813/2016                                                                                                Date heard: 16 February 2017

                                                                                    Date delivered: 21 February 2017

In the matter between

JUAN FRANCOIS VAN DALEN                                                                                 Applicant

vs

GREAT KEI MUNICIPALITY                                                                         First Respondent

MAYOR OF GREAT KEI MUNICIPALITY                                                Second Respondent

SPEAKER OF GREAT KEI MUNICIPALITY                                                Third Respondent

MUNICIPAL MANAGER OF GREAT

KEI MUNICIPALITY                                                                                   Fourth Respondent

JUDGMENT

PICKERING J:

[1] On 3 June 2016 applicant launched an application as a matter of urgency seeking, inter alia, the following relief:

“2.        Declaring the decision of the first, second, third and/or fourth respondent of 18 May 2016 to suspend the applicant from performing the functions of Director: Technical and Engineering Community Services to be unlawful and in breach of the contractual agreement between the applicant and first respondent;

3.         directing the first respondent to take all necessary steps –

3.1       reinstating the applicant in his office allocated to him for the performance of his duties as Director: Technical and Engineering Community Services at the first respondent’s place of business situated at 17 Main Road, Komgha (the Municipality);

3.2       allowing the applicant to perform his duties as Director: Technical and Engineering Community Services of the Municipality;

4.         restraining the first respondent and/or any official of the first respondent, acting at the instance of the first respondent or otherwise (including the second, third and fourth respondents), from, in any manner whatsoever, taking steps, the effect of which would be to denude the applicant of his authority, power and status which the position of Director: Technical and Engineering Community Services of the Municipality confers to him;

5.         directing the first respondent to pay the costs of this application and that the second to fourth respondents pay such costs only in the event of them opposing the application;”

[2] As appears from the Notice of Motion applicant is employed by Great Kei Municipality, as a Director: Technical and Engineering Community Services. 

[3] First respondent, Great Kei Municipality, is a duly established municipality with its principal place of business at Komgha.  Second, third and fourth respondents are the Mayor, Speaker and Municipal Manager respectively of first respondent.

[4] It is common cause that applicant was appointed to his position for a fixed period of five years commencing on 11 June 2012.  It is not in dispute that applicant’s conditions of service are governed, inter alia, by the provisions of the Local Government Municipal Structures Act 117 of 1998 (the “Structure Act”) as well as by the Local Government: Municipal Systems Act 32 of 2000. 

[5] In terms of clause 20 of applicant’s contract of employment the first respondent “may suspend” the applicant on full pay if he is alleged to have committed a serious offence and the first respondent believes his presence at the workplace might jeopardise any investigation into the alleged misconduct, provided that before he is suspended as a precautionary measure he must be given an opportunity to make representations as to why he should not be suspended.

[6] It is further common cause that first respondent, being an organ of state, can only suspend an employee in accordance with the Local Government: Disciplinary Regulations for Senior Managers, published under GN 344 read with the Structures Act.

[7] It is common cause that first respondent, acting through fourth respondent, unlawfully suspended applicant on 3 February 2016.  This much appears from a letter (JVD8) written by first respondent’s attorney to applicant’s attorney on 17 May 2016 where the following appears:

“We have ascertained that indeed the Municipal Counsel (sic) did not give consideration to your client’s representation relevant to his suspension.  The reason therefore is due to the fact that your client had initially accepted the suspension, which acceptance he subsequently withdrew.”

[8] The first respondent’s attorney continued as follows:

“For this reason our client is now in the process of remedying the matter by scheduling a counsel (sic) meeting in order to give consideration to your client’s representations, which counsel (sic) meeting we are instructed will take place on Wednesday the 18^th May 2016.”

[9] Fourth respondent, Ms. Sikhulu-Ngwena who deposed to the answering affidavit of the respondents, stated in this regard that “my decision to suspend the applicant was unlawful, as it was not affected (sic) in terms of the applicable regulations; however that would have the effect that my decision was null and void, of no legal consequence.”

[10] As appears from the above a council meeting was scheduled for 18 May 2016.  It is common cause that at that meeting a resolution was passed in terms whereof applicant was suspended with immediate effect.  The minute thereof reads as follows:

“Extract of Confidential Minutes of the Special Council Meeting Held on Wednesday 18^th May 2016 at New Council Chambers, in Komga at 12h00

C1       Report in terms of regulation 6(3) of Local Government: Disciplinary Regulation for Senior Managers, 2010

Resolved      

i.             That Mr. Van Dalen be suspended with immediate effect

ii.            That such suspension is on full pay.

iii.           That Council Condones later referral of this item outside stipulated 7 days’ time frames as per Regulations.”

[11] Applicant contends in his founding affidavit that the decision to suspend him on 18 May was in contravention of the provisions of section 160 of the Constitution as well as of section 30(1) and (3) of the Structures Act and thus in breach of the contract between the parties, inasmuch as the decision was not put to the vote prior to it being taken.  In response hereto the respondents deny that the suspension was “procured without it being put to vote or that it was in any way in contravention of any statute.”

[12] Fourth respondent goes on to state that applicant “has not sought to review and set aside the resolution of the Municipal Council and has made no case for such relief.  In the circumstances the manner in which the Municipal Council’s decision was procured is not before the Court.”

[13] As regards the procedure adopted at the council meeting applicant refers further to certain information obtained from two ward councillors, namely Beverly-Ann Freda Wood and Sharne Muriel Jacobs.  In their affidavits both Jacobs and Wood state that they were in attendance at the special meeting of first respondent on 18 May 2016.  The agenda received contained only one item, that relating to a matter unconnected with applicant.  There was, so they state, a second item on “a pink paper which is a confidential agenda and would be produced at the meeting.”  They state that as this item was “part of a pink agenda” they are not able to discuss it.  They state further as follows:

“All matters emanating from the green and pink agendas at the municipal council meeting of 18 May 2016 that required a resolution were resolved merely by a motion being moved by a councillor which was seconded by another councillor and then adopted by council as decisions of council.  Nothing else was done.”

[14] The response of fourth respondent hereto is as follows:

“I do however confirm that the issue of the applicant’s suspension was before the municipal council, and it decided the matter and resolved to suspend him.  I am advised by the Mayor and the Speaker that there is nothing untoward with regard to the resolution and it was taken as many previous decisions, the motion was introduced by a councillor, and was seconded by another councillor, as there was no dissenting councillors, the motion was carried and a resolution was taken.... I submit that the resolution was taken in the normal course of business and as all resolutions are taken by the municipal council, unanimously of (sic) at the will of the majority of the council.” 

Presumably the word “of” should read “or”.     

[15] Only first respondent has opposed the application.  In doing so, first respondent has raised a number of issues.

[16] The first such issue relates to the jurisdiction of this Court.  In this regard first respondent relies on the provisions of clause 26.3 of the Contract of Employment.  That clause reads as follows:

“JURISDICTION

The parties consent firstly to the jurisdiction of the Commission for Conciliation, Mediation and Arbitration (CCMA) and if the CCMA is not able to adjudicate the dispute, the courts of the Republic of South Africa with regard to any claim resulting or arising from this contract.”

[17] First respondent contends that the applicant was obliged to have first referred the dispute between the parties to the CCMA in accordance with clause 26.3 and that in the absence of such referral this Court accordingly has no jurisdiction to hear the matter.

[18] It is clear, however, as was submitted  by Ms. Da Silva, who appeared for applicant, that in terms of the Labour Relations Act 66 of 1995 the CCMA is empowered only to deal with allegedly unfair suspensions and that it has no jurisdiction to deal with issues relating to allegedly unlawful suspensions such as in the present matter and has no jurisdiction to issue a declarator to the effect that the suspension of an employee was unlawful.  She pointed out that applicant unequivocally sought to declare the impugned suspension unlawful and to seek his reinstatement on the basis of the principle of legality and not unfairness.

[19] Mr. Smuts S.C., who appeared for first respondent, did not take issue with this.  If I understood him correctly his submission was that, when all was said and done, the dispute between the parties was and remained a dispute about suspension and that the CCMA had the necessary jurisdiction to declare the suspension unfair and to afford the applicant his consequential relief.  It was, he submitted, clearly the intention of the parties to refer any dispute between themselves to the CCMA as a first resort but by basing his claim on unlawfulness applicant had sought to circumvent the provisions of clause 26.3 and of the Labour Relations Act 66 of 1995 (the “LRA”).

[20] That may be so but nothing precluded applicant from basing his claim for relief on the unlawfulness of the suspension as opposed to its unfairness.  The CCMA clearly could not adjudicate such a claim and therefore to refer it firstly to the CCMA would have been an exercise in futility.

[21] As was stated by Nugent JA in Makhanya v University of Zululand 2010 (1) SA 62 (SCA) at para 71:

“Before turning to that explanation there are two observations that I need to make. The first is that the claim that is before a court is a matter of fact. When a claimant says that the claim arises from the infringement of the common-law right to enforce a contract, then that is the claim, as a fact, and the court must deal with it accordingly. When a claimant says that the claim is to enforce a right that is created by the LRA, then that is the claim that the court has before it, as a fact. When he or she says that the claim is to enforce a right derived from the Constitution then, as a fact, that is the claim. That the claim might be a bad claim is beside the point.”

Compare: Gcaba v Minster of Safety and Security and Others (2009) 12 BLLR 1145 (CC); SA Transport and Allied Workers Union and Another v Garvas and Others (2012) 33 ILJ 1593 (CC).

[22] In all the circumstances I am satisfied that the attack on the jurisdiction of this Court is unfounded.

[23] Mr. Smuts then raised the issue of the urgency of the application as was indeed foreshadowed in the first respondent’s answering affidavit.  I do him no injustice by observing that he did so with a degree of reluctance.  This is hardly surprising as there is, in my view, no merit in the submission that the matter was not urgent.  I agree with Ms. da Silva that the suspension, carrying with it imputations of misconduct, was prejudicial to applicant’s integrity and dignity.  Applicant thereafter acted with commendable haste in launching these proceedings. 

[24] First respondent contends further that applicant, in this application, does not seek to review or set aside the decision of the Municipal Council to suspend him.  In the words of the fourth respondent “the Municipal Council decision stands until set aside and such an application is not before this Court.”  Fourth respondent states further that “the relief sought by applicant is premised on his alleged unlawful suspension, he does not seek to review and set aside the Municipal Council’s decision to subject him to disciplinary charges.”

[25] Ms. da Silva submitted, however, that in seeking a declaration of illegality as he does, applicant has indeed raised the question of the legality of first respondent’s decision to suspend him.  She has referred further to the case of Naptosa and Others v Minister of Education, Western Cape and Others 2011 (2) SA 112 (C) where, at 126F – G the following was stated by Conradie J:

“The declaratory order, being as flexible as it is, can be used to obtain much the same relief as would be vouchsafed by an interdict or a mandamus.  Where it is not necessary that a record of proceedings be put before the Court, a declaratory order could serve as a review.  A Court, in exercising its discretion whether to grant a declaratory order should, accordingly, in an appropriate case weigh the same considerations of ‘justice or convenience’ as it might do in the case of an interdict or a review.”

[26] Apart from the declarator applicant also sought his reinstatement.  It hardly needs stating that he could only be reinstated once his suspension had been set aside.  I am satisfied therefore that the declaratory order sought herein clearly serves as a review and that therefore, contrary to fourth respondent’s contentions, the manner in which the municipal council’s decision was procured is indeed before the Court.  I am of the view that first respondent’s averments to the contrary are disingenuous.

[27] I turn then to consider the issue of the lawfulness of applicant’s suspension.

[28] S 151(3) of the Constitution provides:

“A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.”

[29] Section 160 of the Constitution deals with the internal procedures of a municipal council.  Section 160(3)(a) provides that a majority of the members of a municipal council must be present before a vote may be taken on any matter.  Section 160(3)(b) and (c) provides as follows: 

“(b)      All questions concerning matters mentioned in subsection 92) are determined by a decision taken by a Municipal Council with a supporting vote of a majority and its members.

(c)        All other questions before a Municipal Council are decided by a majority of the votes cast.  (My emphasis)

[30] The matters mentioned in s 160(2) are not relevant to this matter.  In terms of s 160(3)(c), therefore, a decision to suspend applicant was required to be decided by a majority of the votes cast.

[31] Section 30(1) and (3) of the Structures Act is also relevant in this regard.  They provide:

“Quorums and Decisions

(1)  A majority of the councillors must be present at a meeting of the council before a vote may be taken on any matter.

(2)  ...

(3)  All other questions before a municipal council are decided by a majority of the votes cast, subject to section 34.”  (My emphasis)

[32] Section 34 is irrelevant to this matter.

[33] I have set out above the averments of the respective parties concerning the procedure which was adopted at the meeting of 18 May 2016.  It was pertinently stated in applicant’s founding papers that the item on the pink agenda (which in the circumstances could only have related to applicant’s suspension) was “resolved merely by a motion being moved by a councillor which was seconded by another councillor and then adopted by council.  Nothing else was done.”

[34] The issue as to whether voting had taken place as required in terms of the Constitution and the Structures Act was therefore pertinently raised and called for a pertinent answer.  In this regard what was stated in Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 at para 12 and 13 is relevant.  It is worth reminding oneself as to what was said there:

“12.     Recognising that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must, in the event of conflict, accept the version set up by his opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers.  Plascon-Evans Paints Ltd v Van Riebeeck Paints (pty) Ltd 1984 (3) SA 623 (A) at 634E – 635C.

[13]      A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say I 'generally' because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.”

[35] Fourth respondent’s response to applicant’s averment can only be described as evasive.  Nowhere does she state that voting did in fact occur and that the motion was carried “by a majority of the votes cast.” 

[36] All that is stated is that there were “no dissenting councillors”.  How it was ascertained that there were no dissenting councillors fourth respondent coyly refrains from saying.  First respondent was of necessity possessed of the knowledge of what occurred at the meeting.  Despite the fact that it had not been called upon to produce those minutes it could have done so in order to give the lie to applicant’s allegations that no voting occurred.  Instead it chose to rest its case on what can only be termed as an ambiguous denial in the course of which fourth respondent does not even go as far as stating that the resolution was adopted unanimously.   

[37] I am satisfied therefore that applicant’s averment that no voting took place must be accepted.

[38] In Mlokoti v Amathole District Municipality 2009 (6) SA 354 (ECD) I had occasion to deal with a similar matter at 373E – 375J and held that some form of voting was required in order for a valid decision to be taken.  I referred therein with approval to the decision of Jafta AJP, as he then was, in Skelenge vs Mnquma Local Muncipality and six Others, unreported case no 52 of 2002, Transkei Division.  Of particular relevance to the present matter is the following passage in the judgment:

“Resolutions should always be an accurate reflection of the opinion of the Council on any matter and by necessity they should represent the majority view on a particular matter. In my view there is only one way of determining a majority view and that is by means of voting. During such voting three options would be available to Councillors, namely, voting in favour, voting against or abstaining. Therefore the contention by Mr. Tshiki to the effect that the majority of first respondent's councillors supported the motion for removing the applicant from office because only one councillor opposed it, cannot be correct. Without putting the motion to voting, the chairman could not determine the level of support thereto and consequently it cannot be said that the council has resolved to remove the applicant from office in terms of section 58 of Act 117 of 1998. By parity of reasoning, the same considerations would apply to the resolution in terms of which the fourth respondent was appointed.”

[39] See too Ncayiyana and 28 others v The Municipal Manager: Mbizana Local Municipality and Four Others, unreported case no 1678/07, Transkei Division, in which Schoeman J referred with approval to the case of Skelenge supra.

[40] Mr. Smuts relied, however, upon the matter of S v Adrus 1987 (1) SA 772 (T) referred to in Mlokoti, supra.  That decision was, in my view, distinguishable.  The record of the meeting in question made it clear that “no abstention or votes against the resolution were recorded.”  It followed, therefore, in the view of the Court, that the decisions were unanimous.  In any event, the matter of Adrus was decided, obviously, before the advent of the Constitution and the Structures Act and on that basis alone is distinguishable.

[41] I find, therefore, that the applicant’s suspension as from 18 May 2016 was unlawful. 

[42] I was advised by counsel during the course of the argument that applicant’s suspension has since lapsed after the launching of this application and that the only order sought by applicant in the circumstances was the declarator referred to in prayer 1 of the Notice of Motion to the effect that his suspension was unlawful.  In effect, therefore, this application has resolved itself into an argument about costs.  It is in the circumstances regrettable that the parties were unable to settle that issue without the necessity of a court hearing and the extra costs attendant thereon.

[43] In the normal course of events I would in the circumstances be disinclined to grant an order in terms of prayer 1 because of the mootness of the issue.  I was advised, however, that the suspension remains a blot on the applicant’s work record.  It seems to me therefore that such an order should be granted.

[44] The following order will issue:

1.    It is declared that the decision of the first, second, third and/or fourth respondent of 18 May 2016 to suspend the applicant from performing the functions of Director: Technical and Engineering Community Services was unlawful and in breach of the contractual agreement between the applicant and first respondent;

2.    First Respondent is ordered to pay the costs of this application.

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J.D. PICKERING

JUDGE OF THE HIGH COURT

 

Appearing on behalf of Applicant: Adv. A.M. da Silva

Instructed by: Netteltons Attorneys, Mr. Marabini

 

Appearing on behalf of First Respondent: Adv. I. Smuts S.C.

Instructed by: Wheeldon Rushmere and Cole, Mr. v.d. Veen

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