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Musina Council criticized for using “unauthorised” lawyer

 

The Musina Municipality has to deal with a rather awkward legal situation after the Labour Court ruled that it had made use of an invalid collective agreement when conducting an appeal hearing in 2015. The judge also ruled that the municipality had used lawyers to defend the case who were not legally mandated to do so. The municipality now needs to start afresh with an appeal process wherein a former worker is claiming he had been dismissed unlawfully.

The case dates back to July 2015 and concerns the then senior assistant (Legal) in the municipality’s Corporate Services Division, Mr Andrew Ncube. Initially, Ncube was unhappy about not being promoted and having to serve in an acting capacity while some positions were not being filled. He took his grievance to SALGA’s bargaining council, where it was found that the municipality had engaged in an unfair labour practice. A settlement agreement was reached whereby Ncube would have been employed at post level 5 from 1 September 2015. It was also agreed that he would be moved to the Town Planning department.

The ink of the signatures on the agreement was not even dry when Musina Municipality charged Ncube with misconduct and gross dereliction of duty. He was found guilty and he was notified of his right to lodge an appeal. Ncube did this, but on 21 October 2015 he was notified that his appeal had been dismissed. Ncube then took the matter to the Labour Court.

The Labour Court was asked to order the Musina Municipality to reinstate him and honour the settlement agreement of July 2015. Ncube’s legal representatives also pointed out that, on 17 September 2015, the Labour Court had ruled on the validity of the Disciplinary Procedure and Code Collective Agreement (DPCCA). During this hearing, the collective agreement was ruled to be invalid. This effectively meant that the wrong “rules” had been applicable when Ncube’s appeal hearing took place.

The court case almost had an unexpected turn when Ncube’s legal team objected to the attorneys representing the Musina Municipality. Carrim Attorneys from Polokwane were instructed to defend the case, but it appeared that no resolution was ever passed authorising them to act on council’s behalf. A letter from the municipal manager, Mr TN Tshiwanammbi, was also not accepted by the court, since no proof was provided that Tshiwanammbi had the delegated authority to appoint lawyers.

In her ruling, made on 21 September this year, Judge Z Lallie emphasized that the executive and legislative authority of a municipal council was vested in its municipal council. “Absent the written authority of a resolution, a municipal official lacks the necessary authority to litigate on behalf of a municipality,” she said.

The fact that no legal representative was on record for the municipality nearly cost them dearly. “The application is, for all intents and purposes, unopposed,” said Judge Lallie. She did not, however, want to grant Ncube’s request for immediate reinstatement. She ruled that it would be impossible to enforce a settlement agreement, as the applicant had been dismissed by the municipality. She also did not want to nullify the dismissal of Ncube, based on the fact that he had been promoted to another post shortly before the disciplinary hearing started. “The acts of misconduct fall outside the realm of the settlement agreement,” she said.

Judge Lallie only granted one of the five requests from Ncube, namely that the outcome of the appeal hearing be declared null and void. She also made no order relating to the cost of the hearing.

When contacted for comment, Ncube said that the outcome of the court case had been sent to the Musina Municipality. “The municipal manager informed us that we must appeal the dismissal, using the legitimate procedure and processes. The Council, which was supposed to answer our legal submissions, did not respond,” he said.

The dispute has now been referred to the SA Local Bargaining Council. This may prove to be a difficult case to resolve, seeing that the collective agreement in place at the time was judged to be invalid. This means that an appeal body will have to make a ruling on a process that was tainted.

For Andrew Ncube, this is just part of a long battle. “I have been without a job for three years and four months now,” he said. “I worked for almost 10 years for the municipality, without a blemish.” He still pins his hope on being reinstated and returning to work.

When asked for comment, the Musina Municipality emphasized that only one of Ncube’s wishes had been granted by the court. His dismissal was upheld and the only issue still to be sorted out is the appeal process.

“The applicant has issued notice of referral of the matter for conciliation by the South African Local Government Bargaining Council (SALGBC), (and) we will await the bargaining council’s directive,” said the municipal manager, Mr TN Tshiwanammbi.

Tshiwanammbi said that the Musina Council had passed the necessary resolutions to mandate the municipal manager to act on its behalf in defending legal matters. Resolutions to this effect were passed in December 2012 and on 25 May 2017.

“Therefore, the appointment of attorneys (including AM Carrim Attorneys) to defend the matter is within the powers vested in the municipal manager as delegated by council. The judge’s commentary on the appointment of attorneys has no bearing on the judgement or matters under dispute,” he said.

In response to a question as to why Polokwane-based lawyers were being used when many competent lawyers could be found in the Vhembe area, Tshiwanammbi said that the appointment had been done in compliance with the Municipal Finance Management Act and Supply Chain Management policies.

“Following a competitive bidding process, the municipality has contracted several law firms to the panel of attorneys … The legal representative used in the matter is a South African professional with experience in similar matters,” he said.

 

News - Date: 27 November 2018

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Anton van Zyl

Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror since 1990. He graduated from the Rand Afrikaans University (now University of Johannesburg) and obtained a BA Communications degree. He is a founder member of the Association of Independent Publishers.

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