Sibanyoni v Speaker of the City of Mbombela and Others (J 828/2024) [2024] ZALCJHB 309; (2024) 45 ILJ 2808 (LC) (19 August 2024)

Key Facts

Issues

• The applicant requested costs after the Council's resolution was declared unlawful. The court ordered the Council to pay, citing its 'blatant disregard' of statutory requirements and the necessity for the applicant to seek judicial redress to protect her rights.
• The respondents contended the Labour Court lacked jurisdiction, asserting the matter fell under section 185 of the LRA. The court rejected this, emphasizing its authority to review the legality of public power exercises under the LRA (sections 157(2)(b) and 158(2)) and the Systems Act, particularly where such exercises impact the rule of law and constitutional principles.
• The applicant challenged the Council's failure to follow regulation 5 and 6 of the Disciplinary Regulations for Senior Managers, which mandate specific steps for suspensions. The court noted the absence of a special leave policy, lack of evidence for good faith or proportionality, and the Council's reliance on 'wisdom' as insufficient legal justification. The resolution was deemed a disguised suspension without proper procedural compliance.
• The applicant sought urgent relief to prevent irreparable harm from the unlawful resolution. The court evaluated whether the applicant delayed in filing (self-created urgency) and concluded the urgency was legitimate, as the resolution's effects (e.g., 30-day suspension period) would negate future remedies if left unchallenged. The court emphasized the public interest in upholding legal processes for senior managers.
• The primary issue was whether the City of Mbombela Council's resolution to place the applicant (Chief Financial Officer) on special leave from 31 July to 29 August 2024, following allegations of misconduct, was lawful. The applicant argued the resolution was a circumvention of disciplinary procedures under the Local Government: Municipal Systems Act and the Disciplinary Regulations for Senior Managers, which only permit suspension under regulation 6 after following specific processes. The court found no legal basis for 'forced special leave' and concluded the resolution was unlawful as it lacked compliance with statutory requirements.

Holdings

• The court determined that the applicant satisfied the requirements for urgent relief, including demonstrating that substantial redress would not be available in due course due to the 30-day time limit for special leave. The application was treated as urgent despite initial objections.
• The court rejected the jurisdictional challenge, affirming its authority to review the legality of the Council's exercise of public power under sections 157(2)(b) and 158(2) of the Labour Relations Act. The separation of powers defense was dismissed as a non-starter.
• The court declared the Council's resolution to place the applicant on special leave unlawful, finding no legal basis for forced special leave under the Systems Act. The resolution was set aside as it circumvented disciplinary regulations and lacked good faith, rationality, and public interest justification.

Remedies

• The Resolution adopted by the Fourth Respondent (Council Resolution B(1) of 30 July 2024) granting the Applicant special leave is declared unlawful and is set aside.
• The Fourth Respondent is ordered to reinstate the Applicant into her position as Chief Financial Officer.
• Condoned failure to comply with the Rules of this Court relating to form and manner of service, and her application is treated as urgent.
• The Fourth Respondent is ordered to pay the costs of this application.

Legal Principles

• The court conducted a judicial review of the Council's resolution, finding it ultra vires (beyond legal authority) and not proportionate. It emphasized that the Council's actions must align with the Disciplinary Regulations for Senior Managers, and their failure to do so rendered the resolution unlawful. The review also assessed whether the suspension was reasonable and rational under the law.
• The respondents argued the court lacked jurisdiction on separation of powers grounds, but the court dismissed this, stating the Council's unlawful exercise of power fell within its review authority. The principle of separation of powers was deemed irrelevant where the Council had acted unlawfully.
• The court held that the exercise of public power by the Council must comply with the rule of law, a foundational constitutional value. The applicant's challenge to the Council's resolution was framed as a legality issue, with the court noting that decisions based on 'wisdom' without legal basis constitute an abuse of power and violate the rule of law.

Precedent Name

• Heyneke v Umhlatuze Municipality
• Apleni v The President of the Republic of South Africa and Another
• Selepe and Another v Mohokare Local Municipality and Others
• Phalatse and Another v Speaker of the City of Johannesburg and Others
• East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others
• Export Development Canada and Another v Westdawn Investments Proprietary and Others
• South African Municipal Workers Union obo Matola v Mbombela Local Municipality
• Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
• Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others

Cited Statute

• Rules of the Labour Court
• Local Government: Regulations: Appointment and Conditions of Employment of Senior Managers
• Labour Relations Act
• Local Government: Municipal Systems Act

Judge Name

Passage Text

• The importance of the rule of law in municipal governance... decisions based on 'wisdom' evinces lack of rationality and clear circumvention of the rule of law. Such decisions borders on self-help and abuse of power.
• The mere fact that there were allegations of misconduct to be investigated against the applicant does not in my view entitle the Council to circumvent the applicable regulations... This application is about an exercise of public power by the Council, and there is no reason why the principle set out in Apleni should not find application, as that exercise of public power by Council as shall further be demonstrated in this judgment, impacts upon the rule of law.
• The Disciplinary Regulations for Senior Managers under the Systems Act does not make provision for an employer to place an employee on forced special leave... Thus, even if the provisions of regulation 5 are complied with, these can only be in respect of laying the ground work for the purposes of imposing a precautionary suspension under regulation 6...