Jako-Wutu v Ntabankulu Local Municipality (P332/14) [2016] ZALCPE 1 (16 February 2016) per Lagrange J.
This is an important judgment because it confirms that procedures for disciplining employees should depend on their occupational level. Senior managers, normally occupy the three highest levels where they are expected to make decisions relating to policy, strategy and tactics. To date the concept of sapiential authority does not appear to have been properly recognised and this is also relevant to occupational levels. There is also explicit confirmation that senior managers have a ‘right to be heard’ as part of natural justice before any decisions are made affecting their future employment. In local government senior managers may only be dismissed lawfully in accordance with:
- s 160(3)(c) of the Constitution;
- the parallel provisions of s 30(3) of the Local Government: Municipal Structures Act 117 of 1998; and
- Local Government : Disciplinary Regulations for Senior Managers, 2010, Notice 344, GG 34213 dd 21/04/2011 [under s 120 of the Local Government: Municipal Systems Act 32 of 2000].
The applicant, the former CFO of the Municipality, was dismissed in September 2015. In reviewing and setting aside her dismissal the Labour Court held that there had been a complete failure to apply the principle of legality in the proceedings preceding her dismissal. Lagrange J decided that as the resolutions were not lawful, ‘they were legally inconsequential and could not empower the [Municipality] to proceed with disciplinary action against the applicant because they violated the previously mentioned provisions of the Structures Act and the Constitution’.
A number of decisions were set aside as unlawful, including the:
- decision to institute disciplinary proceedings;
- appointment of an independent investigator;
- appointment of the presiding officer;
- presiding officer’s recommendation that she be dismissed; and
- municipality’s decision to dismiss.
A senior manager means a municipal manager referred to in s 82(1) [Note: repealed] of the Municipal Structures Act or a manager referred to in s 56 of the Municipal Systems Act [Appointment of managers directly accountable to municipal managers];
The relevant provision of the Local Government : Disciplinary Regulations for Senior Managers, 2010, Notice No 344, GG 34213 dd 21/04/2011 state that:
‘Policy
4(1) If a senior manager is alleged to have committed misconduct, the municipal council must institute disciplinary proceedings in accordance with this Disciplinary Code.
(2) The maintenance of discipline is the responsibility of the municipality.
(3) Discipline must be effected with due regard to
(a) the Code of Conduct for municipal staff members as contained in Schedule 2 of the Act; and
(b) the Code of Good Practice provided for in Schedule 8 of the Labour Relations Act, 1995 (Act No. 66 of 1995).
(4) The principles of natural justice and fairness must be adhered to notwithstanding criminal or civil action having been instituted.
(5) Disciplinary procedures may not be dispensed with as a result of criminal, civil or other action having been instituted, or pending the outcome of such action.
Disciplinary procedures
5(1) Any allegation of misconduct against a senior manager must be brought to the attention of the municipal council.
(2) An allegation referred to in sub-regulation (1) must be tabled by the mayor or the municipal manager, as the case may be, before the municipal council not later than 7 days after receipt thereof, failing which the mayor may request the Speaker to convene a special council meeting within 7 days to consider the said report.
(3) If the municipal council is satisfied that –
(a) there is a reasonable cause to believe that an act of misconduct has been committed by the senior manager, the municipal council must within 7 days appoint an independent investigator to investigate the allegation[s] of misconduct; and
(b) there is no evidence to support the allegation[s] of misconduct against the senior manager, the municipal council must within 7 days dismiss the allegation[s] of misconduct.
(4) The investigator appointed in terms of sub-regulation (3)(a) must, within a period of 30 days of his or her appointment, submit a report with recommendations to the mayor or municipal manager, as the case may be.
(5) The report contemplated in sub-regulation (4) must be tabled before the municipal council in the manner and within that timeframe as set out in sub-regulation (2).
(6) After having considered the report referred to in sub-regulation (4), the municipal council must by way of a resolution institute disciplinary proceedings against the senior manager.
(7) The resolution in sub-regulation (6) must –
(a) include a determination as to whether the alleged misconduct is of a serious or a less serious nature;
(b) authorise the mayor, in the case of the municipal manager, or municipal manager, in the case of the manager, directly accountable to the municipal manager to –
(i) appoint –
(aa) an independent and external presiding officer; and
(bb) an officer to lead evidence; and
(ii) sign the letters of appointment.
…
Sanctions
12(1) The presiding officer may impose any, or a combination of the following sanctions, with or without conditions:
(a) suspension without pay for no longer than 3 months;
(b) demotion;
(c) transfer to another post;
(d) reduction in salary, allowances or other benefits;
(e) an appropriate fine; or
(f) dismissal.”
(emphasis added)