Automated Summary
Key Facts
The applicant, Molemo Kgodisang Lawson Mohlomi, was appointed as manager: housing and planning by the Tlokwe City Council in 2013. His employment was terminated in 2016 by the Ventersdorp/Tlokwe Municipality (first respondent) on the grounds that his appointment was invalid due to not meeting prescribed qualifications. The applicant filed a review application challenging the 2016 termination, while the first respondent filed a counter application to review the 2013 appointment. The court dismissed both applications, ruling that disputes should be resolved under the Labour Relations Act (LRA) via Chapter VIII processes rather than Section 158(1)(h) review. The employer’s counter application was also dismissed due to excessive delay and inconsistent legal arguments.
Issues
- The court evaluated whether the first respondent's termination of the applicant's contract, based on alleged invalidity of his appointment, constituted a dismissal under the LRA. The judgment clarifies that any employer action ending an employment contract, regardless of labeling, qualifies as a dismissal if it is the proximate cause of termination.
- The court addressed whether the applicant's review application bypassing Chapter VIII of the LRA was justified. It held that public sector dismissal disputes must generally follow the LRA's dispute resolution framework unless extraordinary circumstances exist, which were not demonstrated in this case.
- The court dismissed the first respondent's counter application due to unexplained 20-month delay and contradictory positions. The respondent affirmed the 2013 appointment while later seeking to invalidate it, and failed to justify the delay under legal principles of expeditious constitutional obligations.
Holdings
- The court held that the applicant's termination by the first respondent constitutes a valid dismissal under the Labour Relations Act (LRA) and that the applicant's review application was inappropriate as it bypassed the prescribed dispute resolution processes under Chapter VIII of the LRA. The court emphasized that public sector employees must follow the same procedures as private sector employees for dismissal disputes, and the applicant's case did not present exceptional circumstances to justify a legality review.
- The court dismissed the first respondent's counter application to review the 2013 appointment due to excessive delay (20 months) without explanation and contradictory positions taken by the first respondent. The respondent attempted to challenge the appointment after already affirming it by terminating the applicant's employment based on non-compliance with the Municipal Systems Act, which the court found inconsistent and unmeritorious.
- The court discharged the interim relief granted to the applicant and ruled that neither party should bear costs, acknowledging both parties' failure to properly pursue their claims through the appropriate forums. The applicant was directed to pursue the dismissal as an unfair labour dispute through the bargaining council, while the first respondent was bound by its decision to terminate the applicant's employment.
Remedies
- The interim relief granted to the applicant in terms of the order of Lallie J on 20 December 2016 is discharged.
- The applicant's application to review the termination of his employment was dismissed by the Labour Court of South Africa, Johannesburg.
- The first respondent's counter application to review the 2013 appointment resolution was dismissed due to excessive delay and contradictory positions.
- The court decided not to make any order regarding costs, as both parties failed in their respective applications and the matter is likely to continue in another forum.
Legal Principles
- The principle of legality, a constitutional requirement, mandates that all exercises of public power must be lawful and rational. Decisions must be rationally connected to their purpose and not arbitrary. This was central to the court's analysis of the review applications.
- The court held that disputes over dismissals or unfair labour practices must be resolved through the LRA's Chapter VIII mechanisms (e.g., bargaining councils and arbitration) unless extraordinary circumstances justify bypassing these processes.
- The court emphasized that Section 158(1)(h) reviews should be reserved for exceptional cases where no alternative remedy exists under Chapter VIII of the LRA. Ordinary disputes, including dismissals, must follow the prescribed dispute resolution processes.
- The Labour Court has jurisdiction under Section 158(1)(h) of the Labour Relations Act to review decisions by the state in its capacity as employer, including on grounds of legality, rationality, and non-arbitrary exercise of public power.
Precedent Name
- Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal
- Solidarity and Others v SA Broadcasting Corporation
- Public Servants Association of SA on behalf of de Bruyn v Minister of Safety and Security and Another
- Gcaba v Minister for Safety and Security and Others
- Merafong City Local Municipality v SA Municipal Workers Union and Another
- MEC for the Department of Health, Western Cape v Weder and Another
- Hendricks v Overstrand Municipality and Another
- Chirwa v Transnet Ltd and Others
Cited Statute
- Local Government: Municipal Performance Regulation for Municipal Managers
- Public Service Act
- Local Government: Municipal Structures Act
- Constitution of the Republic of South Africa
- Municipal Systems Act
- Promotion of Administrative Justice Act
- Labour Relations Act
- Municipal Systems Amendment Act
Judge Name
S Snyman
Passage Text
- The Labour Court is not precluded by the LRA from reviewing the decisions and acts contemplated in s 158(1)(h). It has the power (and jurisdiction) to review them on any grounds 'permissible in law'.
- The abuse of the Section 158(1)(h) by well paid public service employees to bypass a dispute resolution process that must be (and is) followed by everyone else, must stop.
- The Labour Court may review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law.