Kamiesberg Municipality v Koingnaas Belastingbetalers [2024] ZANCHC 14
CIVIL LAW – Negotiorum gestio – Municipal functions
Alleges municipality failed to maintain roads infrastructure and render water and sanitation services – Respondent undertook repairs without formal procurement processes – Billed costs to municipality – Conflict with provisions of Constitution – Conduct amounts to self-help – Services not sanctioned by municipal council – Conduct impermissible – Applicant established breaches of rights sufficient to interdict respondent.
Facts: Koingnaas was a mining town established, owned, and controlled by De Beers and provided services to its residents. De Beers partially transferred municipal services of Koingnaas to the applicants, Kamiesberg Local Municipality (KLM), in terms of an agreement relating to the transfer of municipal services. The ratepayers maintain that their services have deteriorated since the transfer from De Beers to the municipality, hence they took over some of the services which constrained them to bring litigation. The respondent claims that KLM is failing to maintain the roads infrastructure and to render water and sanitation services. The respondent and its members started repairing the potholes. This led to confrontation with members of the South African Police Service set upon them by KLM.
Application: A rule nisi was granted in favour of the applicants. The order interdicted and prohibited the respondents conducting any road works, maintenance and or repairs to any municipal and public roads situated within the municipal district. The relief sought by the applicants is the confirmation of the rule.
Discussion: The fact that the respondent is effecting repairs to the roads and was in the process of rendering an invoice or has already rendered an invoice of R120,000 to the municipality, without any formal procurement processes, renders them in conflict with the provisions of section 217 of the Constitution. The conduct of the respondent amounts to self-help contrary to the spirit and purport of the Constitution. The respondent has therefore arbitrarily arrogated to itself a monopoly as sole service provider. The services have not been sanctioned by the municipal council and have closed the door to fairness, equity, transparency, and competition.
Findings: Legislatively, the responsibility to render municipal services lies with the municipalities. The applicants bear the right to carry out their obligations as the accounting office and officer. Whether there stands to be apprehension of harm suffered by the applicants is irrefutable. The intentions of the respondent may be well and good but without following proper processes and ensuring that they are fair, equitable, transparent, competitive, and cost-effective, it is impermissible. The respondent acknowledges that its members took over the repairs of the road and intended to take over all the infrastructure and buildings and effect repairs or perform whatever function necessary. The applicants have established breaches of the rights sufficient to interdict the respondent and its members from taking control of the municipal infrastructure. The applicants have established the three requisite elements for the grant of a final interdict and there is neither a scope for refusing such relief nor a general discretion to refuse the relief.
Order: The rule nisi is confirmed.
MAMOSEBO J
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Democratic Alliance v African National Congress [2024] ZAGPPHC 114
CONSTITUTION – Government – Cadre deployment policy
DA contending that policy inconsistent with Constitution and leading to state capture – Constitutional challenge should be explicit – Impermissible for litigant to rely on generalised disenchantment and broad sweeping conclusions – Nothing unconstitutional about political party influencing policy direction of government, including appointment of senior personnel to public service, as long as public service protected against being misused for partisan purposes – Application dismissed with costs.
Facts: The Democratic Alliance (DA) maintains that the ANC’s Cadre Deployment Policy is responsible for eviscerating critical state institutions, blurring lines of accountability, and facilitating state capture. The policy has led to poor service delivery and is responsible for breaches of human rights and inhibiting the State’s ability to function effectively and promote human rights. The DA submits that the Cadre Deployment Policy is used as a mechanism by the ANC to control public administration, which has led to state capture and the erosion of independent institutions.
Application: The DA applies to this court to declare that: the ANC’s Cadre Deployment Policy is inconsistent with the Constitution and therefore unlawful: that the Deployment Committee is inconsistent with the Constitution and invalid; and that the policy is inconsistent with Chapter IV, sections 9, 10 and 11 of the Public Service Act 103 of 1994 and invalid.
Discussion: The ANC maintains this is a matter for the legislative and executive branches of government to debate and agree the limits of political party policies, not the court. The ANC also contends that the DA has failed to observe the principle of subsidiarity and on that basis, its attack cannot succeed. The South African voters have endorsed it as the majority party since the democratic era began and it is elected with a particular set of policies which are expressly or impliedly set out in its manifesto. The DA submits that the Commission of Inquiry into State Capture found that the policy is unconstitutional and had contributed to state capture and corruption. Based on the minutes of the Committee, the DA submits that the Committee instructs, vetoes and approves who may be appointed to public institutions. The Committee usurps power from the Minister and in so doing, distorts the manner in which the Constitution directs power must be exercised.
Findings: There is nothing unconstitutional about a political party influencing the policy direction of a government, including the appointment of senior personnel to public service, so long as the public service is protected against being misused for partisan purposes. It is impermissible of a litigant to rely on a generalised disenchantment and broad sweeping conclusions in pleading a constitutional attack such as the DA has done in this case. It is not common cause that the policy has resulted in corruption, maladministration and state capture. The DA has failed to heed the words of the Constitutional Court that a constitutional challenge should be explicit. The DA came to court with a case built on speculation and conjecture. Corruption knows no boundaries. It inflicts grave harm to society. For that reason, it ought not to be used by political parties to pursue political objectives. The application did not raise genuine and substantive constitutional issues.
Order: The application is dismissed with costs.
LEDWABA DJP, BAM J and MOJAPELO AJ
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Popcru obo Vearey v Commissioner of Police [2024] ZALCCT 10
LABOUR – Disciplinary hearing – Charges – Arbitrator found dismissal substantively fair – Mistakes of law in award
Problematic concept of how charges are framed – Arbitrator’s misconception of nature of enquiry – Applicant did not get fair trial of issues at arbitration – Does not make any findings as to whether applicant was guilty of charge laid against him – If so, whether sanction of dismissal was fair – Requires determination anew – Dispute remitted for re-hearing.
Facts: The applicant was charged with allegedly committing serious misconduct. The conduct alleged that the applicant brought the name of the employer into disrepute, by posting images and messages, and causing same to be circulated, through social media, which was intended to degrade the leadership of the SAPS and or disrespect the authority of the National Commissioner of the SAPS. The applicant was an unsuccessful party at arbitration proceedings in which the arbitrator found the dismissal of the applicant to have been substantively fair.
Application: The applicant submits that the arbitrator misconstrued the nature of the enquiry before him and made material mistakes of law and fact. The applicant seeks to review the arbitration award.
Discussion: Certain paragraphs of the award contain some mistakes of law. The concept that the way charges are framed including the time period they relate to, is of no import in a disciplinary enquiry, is problematic. As is clear from the recording of the charges originally laid against the applicant, alternative charges were dropped before the commencement of the expedited process. A second mistake of law reflected in the award related to the arbitrator’s justification for allowing evidence to be introduced of statements by the applicant after the dismissal, at the cross-examination stage. The arbitrator did not consider this in relation to their admissibility or consider that the evidence had not be given in chief by the employer. He based his decision on the reasonable employer test which test he failed to comprehend. From a comparison of the actual charge for which the applicant was found guilty and dismissed, and the charges which were originally drawn up against him, it is evident that over and above the time period referred to in them, a more substantive difference is to be found.
Findings: The applicant was not charged with incitement of others to commit unlawful acts. However, the respondent’s evidence was heavily weighted to supporting the proposition that he had misconducted himself in this way. The actual charge against the applicant for which he was found guilty was clearly framed. The enquiry before the arbitrator was to decide in a de novo hearing whether the applicant was guilty of the charge as framed, and if so, whether the sanction of dismissal was fair in all the facts and circumstances of the case. The nature of the enquiry, properly determined, allows an adjudicator to duly admit and weigh the evidence before him. A misconstruction of the enquiry is not compatible with performing that function, as this award shows. The applicant did not get a fair trial of the issues at arbitration. There are no findings as to whether the applicant was guilty of the charge laid against him, and if so whether the sanction of dismissal was fair. This needs to be determined anew before the bargaining council.
Order: The award is reviewed and set aside. The dispute is remitted for re-hearing under the auspices of the bargaining council before a different arbitrator.
RABKIN-NAICKER J
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