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FLYNOTES: LABOUR – Suspension – Unlawfulness – Suspended pending investigation into allegations of misconduct – Alleges Municipal Council did not resolve to place applicant on precautionary suspension – Issues in question were not introduced by way of motion – Required to be ventilated, deliberated and put to vote – In absence of such, no resolution on issue of applicant’s suspension could validly have been taken – Purported suspension is declared invalid and set aside.

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

 

Case No: D525/2024

Not Reportable

 

In the matter between:

 

MANDLENKOSI SIDWELL SITHOLE	Applicant
and
DANNHAUSER LOCAL MUNICIPALITY	First Respondent
MAYOR OF DANNHAUSER LOCAL MUNICIPALITY	Second Respondent
SPEAKER OF DANNHAUSER LOCAL MUNICIPALITY	Third Respondent

Heard: 8 November 2024

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 16h00 on 12 November 2024.

 

JUDGMENT

 

ALLEN-YAMAN J

 

Introduction

 

[1]  The applicant, the Municipal Manager of the first respondent, applied for orders in the following terms,

 

‘1.   The application is enrolled as a semi urgent application and the forms and periods of service are curtailed to the extent necessary.

2.   The purported suspension of the Applicant as Municipal Manager by the Second Respondent in a letter dated 23 October 2024 is declared invalid and set aside and the security services provided to him by the municipality prior to his purported suspension be restored forthwith.

3.   The First and Second Respondents are interdicted from preventing the Applicant from performing his functions as Accounting Officer and Municipal Manager of the First Respondent.

4.   The Second Respondent pay the costs of this application.’

 

[2]  The application was first enrolled for hearing on 4 November 2024, by which time the respondents had delivered an answering affidavit and the applicant, his reply. As a result of there having been some confusion concerning the applicant’s founding affidavit and annexures, the details of which are unnecessary to particularise, the application was adjourned to 8 November 2024 for that issue to be resolved.

 

[3]  At the outset of the hearing on 8 November 2024 Mr Madonsela SC for the respondents indicated that the respondents did not intend to persist with all the preliminary, technical points raised in their answering affidavit, but would persist in their challenge to the issue urgency. In the course of argument Mr Pillemer SC for the applicant, in turn, accepted that an annexure to the respondents’ answering affidavit had been incorrectly referenced therein, and that the document itself could be accepted by this court as having been what it appeared at face value to be.

 

[4]  In this circumstances, the issues for determination pertain only to that of urgency and the legality of the applicant’s suspension. Insofar as the latter issue is concerned, this is confined to the question of whether the first respondent (referred to herein as ‘the Municipal Council’) had passed a resolution in terms of which the second respondent (‘the Mayor’) had been empowered to effect the suspension of the applicant (‘Mr Sithole’) on 23 October 2024.

 

[5]  Accepting that the challenge to his suspension was premised on the alleged illegality thereof, the respondents did not challenge the jurisdiction of this court to determine the matter. On the authority of Booysen v the Minister of Safety and Security (2011) 32 ILJ 112 (LAC) this court is satisfied that it has the requisite jurisdiction to consider the application.

 

Urgency

 

[6]  The basis upon which Mr Sithole relied to found urgency rested, in the main, on what he contended to have been the unlawful conduct of the Mayor, alleged to have acted without authority when having effected his suspension. On this issue alone, this court does not disagree with the principle stated in Apleni v President of the Republic of South Africa and Another [2018] 1 All SA 728 (GP),

 

‘Where allegations are made relating to abuse of power by a Minister or other public officials which may impact upon the rule of law, and may have a detrimental impact upon the public purse, the relevant relief ought normally be urgently considered.’

 

[7]  Distinct from the general proposition that matters such as the present ought to be afforded urgency, in the context of Mr Sithole’s specific circumstances, the direct consequence of his suspension has been the demobilization of the security services previously provided to him. In the absence of any evidence which suggests that the perceived threat or threats which had informed the original decision to afford him personal protection has dissipated as a result of his removal from his office, he remains exposed thereto, albeit without the benefit of any protection.

 

[8]  In circumstances in which delay in determination of this matter could be tantamount to the endorsement of the perpetuation of an unlawful situation, whilst contemporaneously allowing Mr Sithole to remain exposed to potential harm, this court is satisfied that the application warrants urgent resolution.

 

[9]  It may also be mentioned that by the time of the hearing of this matter a full set of affidavits had been exchanged and both parties had prepared comprehensive heads of argument. Not only would no purpose be served by delaying the matter to some further date, but both parties would have been obliged to incur further, unnecessary costs in the result, in circumstances in which the applicant is an individual litigant and the respondents’ costs are borne by the public purse.

 

Background

 

[10]  On 8 October 2024, a Special Council Meeting which had previously been convened on 27 September 2024 resolved to consider a decision to place Mr Sithole on precautionary suspension at the following meeting. Notice of the continuance of that meeting was issued later that day, scheduled to be re-convened on 11 October 2024.

 

[11]  The certified extract of the minute of the Special Meeting of 11 October 2024 records that the following resolutions were then taken,

 

‘8.1     CORRESPONDENCE FROM THE OFFICE OF THE MAYOR

After an in-committee, it was,

RESOLVED THAT

(a)     The council rejects the contents of the so-called “Intention to Resign” letter of the 8^th of October 2024, written by the Municipal Manager to the Mayor, and distances itself from the unsavory allegations that it associates with council, or any member thereof; and similarly refutes all allegations and innuendoes carried in the second letter of the 9^th of October 2024.

(b)     The council proceeds with the confirmation and implementation of its resolution of the 8^th of October 2024, that

“the issues raised in the EXCO report by the mayor, in-committee, are serious enough to warrant a formal investigation, and a consideration of the suspension of the Municipal Manager, Mr MS Sithole, pending such investigation.”

(c)  The mayor be authorized to write to the Municipal Manager, Mr MS Sithole, asking him to provide in writing, within 7 calendar days, reasons as why he should not be suspended, pending formal investigations of the matters raised by council, in line with item 6(2) of the disciplinary regulations for senior managers.

(d)     The mayor be also empowered to respond to the two letters by Mr MS Sithole, rejecting both as being false, and inconsequential to the processes of council at hand.

(e)     The council seeks legal assistance to proceed with the matter.’

 

[12]  In the result, on 13 October 2024 the Mayor addressed a letter to Mr Sithole in which he was informed that the Municipal Council intended to investigate certain allegations of misconduct against him, and to place him on precautionary suspension pending the outcome of that investigation. He was accordingly requested to provide written representations as to why he ought not to be suspended within seven days of the letter, which representations he duly provided.

 

[13]  The Special Council Meeting was re-convened on 23 October 2024. The document which was confirmed to have been a true extract of the original minutes by the third respondent (‘the Speaker’) reflected that a number of resolutions had been taken ‘after an in-committee discussion’ which included,

 

‘(a)     The Council noted the Municipal Manager’s representations and resolved that they did not address the reasons for non-suspension.

(b)  The Municipal Manager of Dannhauser Municipality, Mr MS Sithole, be suspended with full salary, subject to the investigation of the matters identified by council, as well as any other matter that may come up during the investigation and other processes, such as precautionary suspension to run for 3 months.

(c)  The council noted the whole process of correspondence between the Mayor and the Municipal Manager, starting from 13 October 2024, culminating in the written representations by the Municipal Manager on 20^th October 2024.

   …

(e)  The security services extended to the Municipal Manager be immediately suspended and demobilized.

   …

(j)   Mrs LP Gcabashe be appointed as Acting Municipal Manager for the duration of the suspension of the Municipal Manager, and the mayor be authorised to append a letter to the chosen incumbent for the Acting Municipal Manager role.

   …’

 

[14]  Later that day Mr Sithole was notified in writing by the Mayor that the Municipal Council had resolved to place him on suspension on full pay, pending an investigation into the allegations that he had committed misconduct.

 

Analysis

 

[15]  It was Mr Sithole’s case that his suspension was unlawful for the reason that the Municipal Council did not resolve to place him on a precautionary suspension and accordingly that the Mayor lacked any lawful authority to do so. Although he accepted what was purported to be a resolution to this effect, he alleged that such resolution was taken in the absence of any voting by the Municipality’s Council members having preceded it. On his version, supported by the affidavits of three Council members, Mr Ntandonyenkosi Madi, Mr Sibusiso Kunene, and Mr Richman Langa, at the meeting of 23 October 2023 two proposals had served before the Council: one in favour and one against Mr Sithole’s suspension. Difference of opinion on the matter led to disorder which descended into uncontrollable chaos, the result of which was that the meeting adjourned without any vote having been taken on the issue, and no resolution having been taken.

 

[16]  The Mayor, on the other hand, disputed the absence of a resolution, having relied on the extract of what was asserted to have been a resolution of the Municipal Council to effect the suspension, taken on 23 October 2024, as set out above. The circumstances in which such resolution had been taken, will be considered hereunder.

 

[17]  The parties were ad idem that the determination of this application rests entirely upon the validity of the resolution of 23 October 2024. They were not, however, ad idem concerning Mr Sithole’s reliance on s158(1)(h) of the LRA. In his replying affidavit, the applicant stated that he,

 

‘… seeks to have the decision to suspend [him] reviewed and set aside as a legality review under s158(1)(h) of the LRA.’

 

[18]  This was elaborated in his heads of argument as follows,

 

‘Even if there had been a vote the decision would not have passed muster because it would have fallen foul of Regulation 6 as interpreted by the labour court in Lebu v Maquassi Hills Local Municipaltiy (2012) 33 ILJ 653 (LC) at para 16, in particular paras 16(c) and 16(d) which describes what the notice calling for representations must contain and how these are to be dealt with by the council. The notice was defective and so was the manner in which the council dealt with the matter rendering it unlawful and invalid and liable to be set aside.’

 

[19]  The respondents objected to the formation of Mr Sithole’s claim as aforesaid on the basis of its contention that reliance on s158(1)(h) constituted a fundamental change to his original cause of action. As his claim had been premised on the absence of a resolution, he could not in reply assert that the decision itself was reviewable, for the adoption of that viewpoint presupposed his acceptance of a factual position both contrary to the position taken by him at the outset and constituting a new cause of action, impermissibly introduced in reply.

 

[20]  Mr Madonsela SC argued further that the principle established in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 SCA constituted a further impediment to the relief sought by the applicant, i.e. the setting aside of the suspension by the Mayor. It was argued that if it was accepted that a decision had been taken by the Municipal Council, such decision together with the consequences which flowed therefrom, must stand until reviewed or set aside. If Mr Sithole accepted the existence of the decision by the Municipal Council, absent any challenge to that decision in these proceedings, this court could not disturb a decision taken in consequence thereof.

 

[21]  The correctness of the legal arguments presented by the respondents cannot be doubted. Mr Sithole could not for the first time in reply, seeks to review and set aside under s158(1)(h) that which he did not accept existed at the outset, the very absence of decision constituted the foundation for his cause of action. Moreover, acceptance by him that the Municipal Council had taken a decision would, in the absence of that decision having been challenged, operate as a bar to a collateral attack on the exercise of the power which the Mayor acquired thereby.

 

[22]  It is correct that Mr Sithole had accepted, in reply, that the Speaker had purported to adopt what was said to have been a resolution, and his reliance on s158(1)(h) was premised on such acceptance. This did not, however, detract from the original stance taken by him, that a resolution to suspend him could only have been taken by way of a decision of the Municipal Council, which necessitated the prior taking of a vote by the Municipal Councillors. Absent such a vote, there could have been no decision, without which no valid resolution could have been taken. This issue will now be considered.

 

[23]  Mr Sithole is the Municipality’s Municipal Manager, a position established in terms of s55 of the Local Government: Municipal Systems Act, 2000. As such, the Local Government: Disciplinary Regulations for Senior Managers, 2010 (‘the Regulations’) apply to him.[1]

 

[24]  A Municipal Council is empowered to suspend a Municipal Manager in terms of Regulation 6, provided that it is satisfied, for the reasons set out therein, that such suspension is warranted. Distinct from the substantive reasoning which must underpin such a decision, the Regulations demand compliance with the procedure established therein,

 

‘(2)  Before a senior manager may be suspended, he or she must be given an opportunity to make a written representation to the municipal council why he or she should not be suspended, within seven days of being notified of the council’s decision to suspend him or her.

(3)  The municipal council must consider any representation submitted to it by the senior manager within seven days.

(4)  After having considered the matters set out in subregulation (1), as well as the senior manager’s representations contemplated in subregulation (2), the municipal council may suspend the senior manager concerned.’

 

[25]  In consideration of the respondents’ reliance on the resolution having been adopted on the basis of there having been no opposition to the Motion, Mr Pillemer SC argued that not only did the matter not serve before Council as a Motion, it was also evident that the proposal that Mr Sithole be suspended was not unopposed. As such, the only basis upon which a resolution could have been passed to suspend him by the Municipal Council would have been by way of a vote of the councillors in accordance with Rules 29 and 30 of the Standing Rules.

 

[26]  Mr Madonsela SC argued that Mr Sithole’s reliance on the Standing Rules constituted an impermissible attempt to make out a case in reply, in view of the fact that he had placed no reliance thereon at the outset. In response Mr Pillemer SC argued that the Standing Rules were introduced in reply merely to rebut the respondents’ case that the decision had been taken by the adoption of an unopposed Motion. This court can conceive of no reason why Mr Sithole ought to be barred from placing reliance thereon. His case was, and at all times remained, that a vote was required to have been taken by the Municipal Councillors in order for the Mayor to have been authorised to effect his suspension, and that this had not been done. The Standing Rules, which are in any event subordinate legislation, served only to answer the respondent’s case that voting had been unnecessary.

 

[27]  Proceedings of the Municipal Council are governed by the Dannhauser Municipal Standings Rules and Procedure of Council and its Committees (the Standing Rules’), published in the Extraordinary Provincial Gazette of KwaZulu-Natal on 28 May 2009. The document prescribes, inter alia, the manner in which the business of the Municipal Council is to be conducted.

 

[28]  In accordance with the Standing Rule 19, Municipal Council meetings are required to adhere to a specific format. Of relevance for present purposes is the distinction drawn therein between the types of matters which may serve before the Municipal Council for its consideration and in respect of which decisions may be required to be taken. These include Motions, Questions, General Matters of an Urgent Nature, and Matters of the Day. Of these, the only discernible circumstance which may give rise to adoption in the absence of voting is where the item in question had been brought to the Municipal Council on Motion, and the adoption thereof has been unopposed. Irrespective of the form in which an issue has served before the Municipal Council,

 

‘All other questions[2] before the council shall be decided by a majority of the votes cast by the councillors present.’[3]

 

[29]  The manner in which votes are to be cast is prescribed by Standing Rule 30, being by way of a show of hands (unless otherwise elsewhere prescribed), with the result recorded.

 

[30]  The respondents did not suggest that the resolution upon which they relied had been taken by way of a vote, and nor did they dispute the correctness of the allegations made by Messers Madi, Kunene and Langa that no vote on the issue of Mr Sithole’s suspension had taken place. Instead they sought to suggest that no vote was required to have been taken as the matter had been dealt with as a Motion. The circumstances in which the Municipal Council was said to have treated it as such, and thereby taken its decision, were articulated as follows,

 

‘Following the meeting of 11 October 2024, the meeting of 23 October 2024 had to consider a report on the written representation from the Applicant. It was after the consideration of the written representation that Council placed the Applicant on precautionary suspension. Lastly, the said motion was duly seconded after I had read a report on the matter. The Third Respondent then called for a counter proposal, to which there was none. The motion was adopted by Council on the ruling by the Third Respondent.’

 

[31]  If consideration is to be had to the Council Meetings which preceded the meeting of 23 October 2024 it is clear that the issue of Mr Sithole’s potential suspension had never served before the Municipal Council as a Motion.

 

[32]  Apparent from the respondents’ own papers, the meeting of 8 October 2024 was a continuation of the previous Special Meeting of 24 September 2024. The extract of the minutes of the latter recorded that the resolution then taken related to a recommendation which had been made by the Municipality’s EXCO regarding Mr Sithole’s suspension, as ‘Item 8.2’. This accorded with the Agenda which had been provided to the Council Members on 4 October 2024, in which it was expressly recorded that there were no Notices of Motion and the EXCO recommendation had been reflected as one of the ‘Matters of the Day.’ At that meeting, it appears to have been resolved that the Municipal Council would consider the decision whether to place Mr Sithole on a precautionary suspension together with the need for the issues of his possible misconduct to be investigated at the following meeting.

 

[33]  Such meeting took place on 11 October 2024, with the Agenda therefor having been silent in respect of any matter to be placed before the Municipal Council by way of Motion. The issue of Mr Sithole’s proposed suspension was, once again, placed on the Agenda as ‘Item 8.2’ under ‘Matters of the Day.’ The extract of the minute of that meeting reflected that the issue had been dealt with in accordance with the Agenda.

 

[34]  Although this court was not provided with the Agenda for the Meeting of 23 October 2024, Mr Sithole described it as having,

 

‘… stipulated that it was to deal with the report on the Municipal Manager’s correspondence and way forward (to be tabled at the meeting and to be discussed in committee). This was to deal with the threatened suspension and to consider my representations.’

 

Mr Sithole’s summation of the contents of the Agenda was not challenged by the respondents.

 

[35]  From the minute of the meeting of 23 October 2024 it is evident that the resolution which was said to have been taken concerned precisely the same issues which had previously served before the Municipal Council on 8 and 11 October 2024, never by way of Motion. There is moreover no evidence before this court that the issue which had previously been otherwise dealt with had, in the intervening period, been somehow converted to a Motion, with the procedures provided for under Standing Rule 23 having been complied with. On the contrary, it is clear that the issues in question were not introduced by way of Motion. They were accordingly required to be ventilated, deliberated, and put to the vote. As this did not happen, no resolution on the issue of Mr Sithole’s suspension could validly have been taken.

 

[36]  Having so found, it is unnecessary for this court to make any finding in relation to Mr Sithole’s alternative argument that, even if this court were to find that the issue had been by way of Motion, opposition thereto had prevented its adoption without voting having taken place.

 

[37]  Regulation 6 of the Disciplinary Regulations empowers only the Municipal Council to suspend a Senior Manager. Absent a resolution to this effect, the Mayor lacked the authority to act as he did. As the action taken by the Mayor in purporting to suspend Mr Sithole lacked the requisite legal foundation, it was unlawful. Mr Sithole had accordingly established a clear right to the relief he seeks.

 

[38]  As to the question of a potential, alternative remedy at Mr Sithole’s disposal, his singular complaint concerned the unlawfulness and invalidity of the Mayor’s actions, no mention having been made regarding the unfairness thereof. The concepts were distinguished in Manamela v Department of Co-Operative Governance, Human Settlements and Traditional Affairs, Limpopo Province [2013] ZALC JHB 225, as follows,

 

‘A suspension would be invalid if the suspension for example is ultra vires the powers of the functionary effecting the suspension or the regulatory provisions of the employer do not permit the act of suspension in the first instance or may even prohibit it. In such instances, the suspension is ultra vires, and accordingly invalid. …

A suspension would be unlawful in instances where the right or power of the employer to effect a suspension is prescribed by specific regulation and these regulations are not complied with by the employer. The unlawfulness is founded on the employer not complying with its own rules. This regulation (rules) can be done in the form of a disciplinary code and procedure, collective agreement, statutory provisions, or other regulatory provisions. …

As to the third ground, a suspension would be unfair if it is found to be unfair in terms of the unfair labour practice provisions of the LRA and pursuant to the dispute resolution prescribed in that statute. In Section 186(2)(b), it is recorded that an unfair labour practice means ‘any unfair act or omission that arises between an employer and an employee involving- … (b) the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee. …’[4]

 

[39]  As Mr Sithole’s cause of action was not premised on the unfairness of the action taken the dispute resolution process prescribed for such a dispute is not apposite. Moreover, that dispute resolution process makes no provision for any type of urgent relief. To require him follow that process as an alternative course of action would be to require him to endure the unlawful deprivation of the office to which he has been appointed until the conclusion thereof. As such, the existence of the unfair labour practice dispute resolution mechanism under s186(2)(b) cannot constitute a reasonable, alternative means to resolve his complaint.

 

[40]  The apprehension of harm expressed by Mr Sithole also informed the grounds upon which he claimed urgency. This related to both his own reputation, given his professional and personal standing in the community and the publicized nature of the events in question, as well as the potential damage his absence may cause to the veracity of the audit currently underway in the Municipality.

 

[41]  Mr Sithole’s suspension necessitated that the Municipality appoint its Director: Technical Services to the position of Municipal Manager in an Acting capacity. The letter of appointment given to her makes it clear that at the time of her appointment she was unfamiliar with the work undertaken by the Municipal Manager as she was then furnished with a number of resolutions of the Municipal Council,

 

‘… to enable [her] to quickly sink [her] teeth into the matters requiring her immediate attention.’

 

[42]  The Municipality is in the midst of a regulatory audit which will, as a matter of course, require responses and explanations regarding its expenditure. This being so, it is inconceivable that the Acting Municipal Manager, whose knowledge of the internal workings and processes of the Municipality is evidently not on par with that of Mr Sithole, will be in a position to properly deal with whatever issues may arise. There is accordingly a potential risk that the absence of the Municipality’s Accounting Officer, Mr Sithole, will be to the detriment of the accuracy and transparency of the audit itself.

 

[43]  In consideration of the aforementioned, this court finds that Mr Sithole has established the requirements for final relief: a clear right, injury committed, and the absence of any other satisfactory remedy. The final consideration is then whether exceptional circumstances exist which warrant this court’s interference with the present state of affairs.

 

[44]  Beyond the personal ramifications for Mr Sithole are the patent incursions into the rule of law. The manner in which the Mayor orchestrated his suspension demonstrate complete disregard for both Mr Sithole’s statutory rights and his own obligations as the Mayor of the Municipality. In the words of Molahlehi J (as he then was) in Taung Local Municipality v Mofokeng [2011] ZALCJHB 30,

 

‘The manner in which the resolution in this matter was taken does not only undermine the rule of law but also fundamentally undermines the constitutional right to fair labour practice of the respondent.’[5]

 

[45]  This court is accordingly satisfied that the circumstances are such that a failure to grant the relief sought would lead to a grave injustice, and this court’s intervention is warranted.

 

Costs

 

[46]  Both parties sought orders that costs follow the result of their own success. Both parties utilised the services of Senior Counsel and were in agreement that the appropriate scale would be ‘C’.

 

[47]  Mr Sithole has been successful. The respondents’ opposition was premised upon an indefensible position. In light of the fact that the respondents have, on their own version, experienced a similar situation in the past those involved in the implementation of what was purported to have been a resolution not only ought to have, but did in fact know better. Well aware of their legal obligations, they proceeded to implement that which they knew lacked a lawful foundation, and litigated accordingly. There is no reason why Mr Sithole, an individual who has been obliged to approach this court to vindicate his clear, statutory right, ought to bear the legal costs of having done so.

 

[48]  This court will accordingly grant Mr Sithole the order of costs sought by him.

 

Order

 

1.  The application is enrolled as a semi urgent application and the forms and periods of service are curtailed to the extent necessary.

 

2.  The purported suspension of the Applicant as Municipal Manager by the Second Respondent in a letter dated 23 October 2024 is declared invalid and set aside.

 

3.  The First and Second Respondents are interdicted from preventing the Applicant from performing his functions as Accounting Officer and Municipal Manager of the First Respondent.

 

4.  The Second Respondent is ordered to pay the costs of this application, where applicable, the scale to be ‘C’.

 

K Allen-Yaman

Judge of the Labour Court of South Africa

 

Appearances

 

Applicant:

Mr M Pillemer SC, instructed by Cebisa Attorneys Inc

 

Respondent:

Mr T Madonsela SC with Mr S Madikizela, instructed by S Sithebe Attorneys Inc

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