REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

CASE NO: 50919/2017

In the matter between:

DR NOMATHEMBA BLAAI MOGKETHI

and

THE SPEAKER OF COUNCIL: NORTH WEST 405

APPLICANT

(VENTERSDORP/TLOKWE LOCAL MUNICIPALITY) 15r RESPONDENT

THE EXECUTIVE MAYOR OF THE NORTH WEST 405 (VENTERSDORP/TLOKWE LOCAL MUNICIPALITY) 2ND RESPONDENT

THE COUNCIL OF NORTH WEST 405 (VENTERSDORP/TLOKWE LOCAL MUNICIPALITY) 3RD RESPONDENT

NORTH WEST 405 (VENTERSDORP/TLOKWE LOCAL MUNICIPALITY) 4TH RESPONDENT

THE MEC FOR THE NORTH WEST PROVINCIAL LOCAL GOVERNMENT AND HUMAN SETTLEMENTS DEPARTMENT 5™RESPONDENT

HENDRIK ERIC LOUW 5THRESPONDENT

JUDGMENT

MOOSAAJ:

2

Introduction:

[1] This is an application wherein the applicant applies for the following

interim interdictory rel ief pending the outcome of an application to be

launched within 10 days of the order:

1.1 The First to Fourth Respondents are interdicted and restrained

from acting upon the letter alternatively notice of decision from the

office of the Fifth Respondent addressed to and received by the

Second Respondent in July 2017 and which is annexed to the founding

affidavit marked "FA9".

1.2 Interdicting and restraining the First to Fourth Respondents from

tabling, discussing, deliberating and/or deciding the validity of the

Applicant's employment and contract with the Fourth Respondent.

[2] Properly construed , the applicant prays in her notice of motion for

interim interdictory relief, which can be framed as follows:

The First to Fourth Respondents are interdicted and restrained :

[a] from acting upon the letter alternatively notice of decision from

the office of the Fifth Respondent addressed to and received by the

Second Respondent during July 2017 and which is annexed to the

founding affidavit marked "FA9".

[b] from tabling, discussing, deliberating and/or deciding the validity

of the Applicant's employment contract with the Fourth Respondent.

[3] The aforementioned interdict to operate as an interim interdict pending

the outcome of an application by the Applicant, to be issued within 10 (ten)

days of the order:

3.1 to review the decision of the Fifth Respondent as contained in

the letter alternatively notice of decision from the office of the Fifth

Respondent addressed to and received by the Second Respondent

3

addressed to and received by the Second Respondent in July 2017

and which is annexed to the founding affidavit marked "FA9"; and/or

3.2 declaring that the Applicant is the appointed Municipal Manager

of the Fourth Respondent by fixed term contract until 30 June 2018

alternatively 05 December 2020; and/or

3.3 directing that the Fourth Respondent comply with the Applicant's

contract of employment and interdicting and restraining the First to

Sixth Respondents from bringing about the termination of the

Applicant's employment without due process of law and compliance

with the terms of her contract of employment.

[4] Accordingly, the main application includes a review application in terms

of Rule 53 of the Uniform Rules of Court.

[5] All the Respondents oppose the interim interdictory relief sought.

Points in Limine:

[6] Urgency - After hearing argument and considering the submissions that

were made regarding the urgency of the matter, the Applicant's first prayer

that the matter be disposed off in terms of Rule 6(12) of the Uniform Rules of

this court was granted.

[7] Jurisdiction - The applicant's counsel submitted that the CCMA 1 was

unable to deal with this matter, as it only deals with unfair labour practices and

the nature of the current dispute between the parties clearly could not be dealt

with by the CCMA. Arguing further that this court enjoyed the necessary

jurisdiction to adjudicate the matter. The Respondents however contended

differently. Briefly arguing that the Labour Court was the correct forum where

1 Council for Conciliation Mediation and Arbitration

4

the dispute relating to the termination of the contract could be dealt with. After

hearing argument and considering the matter, I accordingly ruled that the High

Court enjoyed jurisdiction to adjudicate this matter.

[8] Res Judicata - Counsel for the Fifth and Sixth Respondents

subsequently raised the defence of res judicata, which became highly

contentious. It is noteworthy to mention that a very substantial part of the

proceedings of the day was spent on hearing argument in this regard , and

which point was argued relentlessly by the relevant litigants.

In essence, the point taken by counsel for the aforementioned Respondents

concerned the dismissal of the application at the hearing during the previous

week before the North West High Court, by his Lordship Mr Acting Deputy

Judge President (ADJP) Hendriks. Mr Scholtz who appeared for the Fifth

Respondent in that court and who now raised this point contented that the

application was dismissed with costs and implying that the application was

dismissed on it's merits. Further submitting to this court, upon query, that he

"was unable to get into the head of the judge in knowing why the application

was dismissed with costs". Counsel for the Sixth Respondent also joined the

fray to argue this point relentlessly; arguing that the point raised by the Sixth

respondent was a 'red herring', despite the Sixth Respondent not being a

party to the proceedings before the court a quo.

Mr Willis on behalf of the Applicant submitted that the application was

dismissed purely on the basis of lack of jurisdiction and not premised on the

merits. Arguing in the .circumstances that the application before this court was

not res judicata. Despite these submissions made by counsel for the

applicant, the aforementioned Respondents counsel were adamant that this

application was res judicata, and were unrelenting with their persistence on

this point.

Having due regard fo the fact that there were two diametrically opposed

versions before this court, which could possibly on the one hand sound the

death knell of this application or conversely allow it to proceed, this court

5

deemed it imperative that further clarification be obtained from the Honourable

Hendriks ADJP. Efforts to contact him proved fruitless and the litigants were

duly informed of the outcome of such efforts. In the circumstances, the

litigants were requested to agree to the terms of a postponement sine die,

with interim relief for the applicant, pending the furnishing of reasons by the

court a quo.

Upon reconvening a short while later, much to the surprise and consternation

of this court, counsel for the Fifth and Sixth Respondents informed this court

that they now chose to abandon the res judicata point and accordingly

attempted to withdraw their defence and argument. Having carefully

considered the lengthy_ and vociferous arguments raised, the interests of the

parties, the fact that the entire application could turn on this pivotal point and

that the credibility of the parties hinged on the reasons furnished, this court

was of the view that it was imperative in the interests of justice that the

reasons be obtained from the court a quo.

Accordingly, this court did not accede to the request of the Fifth and Sixth

Respondents and the following order was granted:

"[a] The current proceedings are stayed pending the furnishing of reasons

by the Honourable Acting Deputy Judge Preident Hendriks in case number

UM 03/17 which was held on 18 July 2017 at Mmabatho, wherein he

"dismissed the application with costs".

[b] The First to Fourth Respondents are interdicted and restrained from

dealing with the employment and contract of the Applicant with the Fourth

Respondent, pending the judgment of th is court on the urgent application

before it.

[c] Costs reserved".

The reasons were subsequently received and the matter proceeded on

14 September 2017. It is clear from the reasons obtained that the argument

6

raised by the Fifth and Sixth Respondents was spurious and disingenuous. In

essence, Hendriks ADJP submitted, inter alia, as follows: [6] "It is common

cause that Potchefstroom does not resort under the jurisdiction of the North

West Division of the High Court but rather under the jurisdiction of the North

Gauteng Division. Due to the lack of jurisdiction over this matter, this court

could not entertain this matter because it was in the incorrect or wrong forum.

No other aspect relating to this matter could have been entertained by this

court due to the lack of jurisdiction. [7] It is for this reason that I dismissed the

application with costs".

Accordingly, this point in limine was dismissed and the matter proceeded to

be argued on the merits.

Ad Merits:

[9] The main dispute between the Applicant and the Respondents pertains

to whether or not the Applicant's appointment as Municipal Manager of the

Ventersdorp/Tlokwe Municiplity had expired on 09 August 2017.

[1 O] It is common cause that the Applicant was duly appointed as the

Municipal Manager of the Tlokwe Municipality in terms of a fixed term

employment contract, effective 01 July 2014 for a fixed period of four years i.e

until 30 June 2018, subject to the applicable legislation and in particular

Section 57(6)(a) of the Local Government: Municipal Systems Act2

("Systems

Act").

[11] Section 57(6)(a) of the Systems Act provides as follows:

"(6) The employment contract for a municipal manager must -

z 32 of 2000

(a) be for a fixed term of employment up to a maximum of

five years, not exceeding a period ending one year after the

election of the next council of the municipality."

7

[12] It is clear from the aforementioned that a Municipal Manager's

employment contract would terminate upon the expiry of its fixed period of

employment up to a maximum of five years, or one year after election of the

next council, which ever occurs first.

[13] It is common cause that upon or about 03 August 2016 the Tlokwe and

Ventersdorp Municipalities were disestablished and a new Municipality known

as NW 405, to be renamed in due course, was established.

[14] Section 14(1) of the Local Government: Municipal Structures Act3

("Structures Act") provides as follows:

(1 )(a) A municipality established in terms of Section 12 in a particular

area, supersedes the existing municipality or municipalities to the

extent that the existing municipality or municipalities fall within that

area.

(b) The superseding municipality becomes the successor in law of

the existing municipality subject to paragraph (c).

(c) Where a district municipality and one or more local

municipalities within the area of the district municipality supersedes

the existing municipality or municipalities in that area, the district

and local municipalities in that area become the successors in law

of the existing municipality or municipalities depending on the

specific assets, liabilities, rights and obligations allocated to the

district and local municipalities respectively in terms of the relevant

section 12 notice or notices".

[15] Pursuant to the terms of Section 14( 1 )(b) NW405 became the

successor in law of the existing municipalities4.

3117 of 1998 4 City of Cape Town & others v Robertson & others: 2005(2)SA 323 (CC) para SO

8

[16] Section 14(3)(a) of the Structures Act provides as follows:

"(3)(a) The transfer of a staff member in terms of a Section 12 notice

must be-

(i) on conditions of service not less favourable than those

under which the staff member served in the existing municipality;

and;

(ii) in accordance with the Labour Relations Act 1995 (Act

No. 66 of 1995)."

[17] Accordingly, in terms of Section 14(3)(a) of the Structures Act, the staff

of the existing municipalities were transferred to the employ of the

superseding Municipality, on such terms and conditions of service not less

favourable under which they previously served, subject to the provisions of

the Municipal Systems Act.

[18] On 01 August 2016, the Fifth Respondent issued a directive (Post

Election Transitional Measures), whose purpose was to direct and guide the

two Municipalities to manage the post elections Senior Management staffing

capacity. The Applicant was duly appointed as the Acting Municipal Manager

until the new Council of the Municipality was constituted.

[19] Concerns were subsequently raised regarding the impact and effect of

the aforementioned directive and the appointment of acting

Managers/Directors. This resulted in a legal opinion 5 being sought from

Messrs Willem Coetzee Attorneys regarding the validity of the acting

appointments, and which concluded, inter alia, that:

19.1 The MEC's directive was unlawful, ultra vires and invalid, as it

was not authorised by the empowering legislation.

s dated 14 September 2016

9

19.2 The MEC's directive was in addition procedurally fatally flawed

as it was not published in the Provincial Gazette and therefore on this

ground invalid.

19.3 The Municipality was therefore not bound by the directive.

19.4 The Municipal Council should as a matter of urgency attend to

the staff matters at its next meeting, including taking transitional

measures in compliance with labour law principles.

19.5 The Municipality should inform the MEG according ly.

(20] It is clear that neither the Municipal Systems nor Structures Act

empowers the Fifth Respondent to appoint or terminate the contracts of

Municipal Managers. Such power clearly vests in the Municipality and it's

Council and not the Fifth Respondent. Pursuant to the receipt of the opinion

and advice the Municipality proceeded to attend to it's staffing matters.

[21] It is common cause that at the Council meeting of the NW405

Municipal'ity, held on 06 December 2016, and in respect of item

C46/2016-12-06 on the agenda, the following was re.solved :

21.1 "That cognisance be taken of the report and legal opinion

received from Messrs Willem Coetzee Attorneys.

21.2 That the directives of the MEG Department of Local Government

and Human Settlement dated 1 August 2016 (attached to item

SPC3/2016-08-17) be corrected and that the following

Directors be appointed according to the conditions and

terms as stipulated in their respective contracts":

(my emphasis)

Dr N E Blaai-Mokgethi

C P Henri

P C Labuschagne

RT S Masitenyane

Ms B M B Mosepele

L J Nkhaumane

BM Zungu

Municipal Manager

Director Sports Arts and Culture

Director Economic Development

Director Corporate Services

Director Community Services

Director Public Safety

Director Infrastructure

10

21.3 That the Municipal Manager add an addendum to the contracts

of the abovementioned Directors to make provision for the replacement

of the name Tlokwe City Council and Ventersdorp Municipality with the

name Ventersdorp/Tlokwe Local Municipality MW 405 as well as the

changes depicted in paragraph 2 above."

[22] The Applicant submits that the Council duly took the aforementioned

decision and passed the resolution with the full knowledge and appreciation of

it's powers and authority under the Municipal Systems Act and the powers of

the Fifth Respondent in terms of the Municipal Systems and Structures Act.

Accordingly, all the aforementioned persons were appointed according to the

conditions and terms as stipulated in their respective contracts.

[23] Consequently, it is argued by the Applicant that her fixed term contract

of four years applied and that according to the terms and conditions therein

she would continue to be the Municipal Manager until 30 June 2018. In the

alternate, the Applicant contends that a second contract was concluded

effective 06 December 2016 for a fixed period of four years, expiring on

05 December 2020. Arguing further that the applicant has as extant contract

of employment with the superseding municipality NW405.

[24] The Applicant argues further that the intervening event of the

disestablishment of the Tlokwe Municipality on 03 August 2016 derailed it's

next election, and accordingly that 03rd August 2016 be regarded as the date

of the first election of the Council of the superseding Municipality (NW405) as

11

envisaged by Section 12(2)(b) of the Structures Act. The empowering section

states that the establishment of a council takes effect at the commencement

of the first election of the Council of that municipality.

[25] In essence, arguing that the first election of the Council of the NW405

Municipality cannot be regarded as the "next Council of the Tlokwe

Municipality" and therefore in the circumstances the latter provision of Section

57(6)(a) has no application. In effect, that the Applicant's tenure does not

come to an end on 09 August 2017 as argued by the Respondents, but on

30 June 2018, as per her fixed term contract.

[26] The Applicant further argued that the resolution of 06 December 2016,

wherein it was resolved that the Applicant be appointed as the Municipal

Manager is an administrative act, as defined in the Promotion of Access to

Justice Act6 (PAJA). As such, an administrative act, including an act which

appears unlawful, can only be set aside by a court of law7

.

[27] I do not deem it necessary to deal in minute detail with the individual

arguments of counsel on behalf of the Respondents for the sake of brevity

and to avoid prolix. In essence, having distilled the arguments, the

Respondents oppose the relief sought on the basis that:

27 .1 The employment contract of the Applicant has come to an end

on 09 August 2017, by virtue of the fact that the election of the

superseding Council was on 03 August 2016; and as provided for in

Section 57(6)(a) of the Systems Act "that the employment contract for a

municipal manager must not exceed a period ending one year after the

election of the next council of the Municipality".

6 3 of 2000 7 Oudekraal Estates Pty (Ltd) v City of Cape Town & others: 2004(6) SA 222

(SCA) para 26

12

27.2 That the ~econd contract of employment as contended by the

Applicant to endure until 05 December 2020 is clearly in contravention

of Section 57(1) and (3) of the Systems Act as the Applicant is unable

to rely on any written contract of employment signed by both parties on

06 December 2016.

27.3 That the applicant has failed to meet and prove the

requirements for the grant of an interlocutory interdict, as required by

law.

Requisites for an interlocutory interdict:

[28] The requirements which the applicant has to satisfy for the grant of

interim relief sought are as follows:

28.1 That the right which is the subject matter of the application and

which is sought to be protected by means of interim relief, is at least

prima facie established.

28.2 A well grounded apprehension of irreparable harm to the

applicant if the interim relief is not granted and the ultimate relief is

eventually granted.

28.3 That the balance of convenience favours the granting of interim

relief.

28.4 That the applicant has no other satisfactory remedy8

a Setlogelo v Setlogelo 1914 AD 221 at 227; Tshwane City v Afriforum 2016 (6) SA 279 (CC) at 298F-306B; National Treasury v Opponents to Urban Tolling Alliance 2012 (6) SA 223 (CC) at 235D-E

13

[29] It is trite and well established that the court has a general and

overriding discretion whether to grant or refuse an application for interlocutory

relief, which discretion must be exercised judicially upon a consideration of all

the facts9

. As to the manner in which the requisites for an interim interdict are

to be considered, these must not be viewed separately or in isolation but in

conjunction with one another in order to determine whether the Court should

exercise its discretion in favour of the grant of the interim relief sought.

Furthermore, there is, in particular, a clear interaction between the balance of

convenience and the strength of the prima facie case required. See:

Cambridge Plan AG and Another v Moore and Others 1987 (4) SA 821 (0) at

833F.

[30] The factors which should be taken into consideration in the exercise of

the discretion are:

(i) the applicant's prospects of success in the main action/

application;

(ii) the availability or not of an adequate ordinary remedy;

(iii) the balance of convenience and the respective prejudice which

would be suffered by each party as a result of the grant or refusal of an

interlocutory interdict.

[31] Where an applicant's right is clear and the other requisites are present,

no difficulty presents itself about granting an interim interdict 1°.

[32] It is duly accepted that the right to be set up by an applicant for a

temporary interdict need not be shown on a balance of probabilities. If it is

prima facie established though open to some doubt, that is enough (emphasis

added) 11. The prescribed manner of approach to determine whether a prima

facie right has been proven where the right is not clear on the affidavits then

the test for whether the applicant has established a prima facie case for an

9 Knox D'Arcy v Jamieson & Others 1996 (4) SA 348(A) at 361 H-1 10 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957(2) SA 382 (D) at 383A 11 Webster v Mitchel 1948(1) SA 1186 (W) at 1189

14

interim interdict has been formulated by the court in the Webster case supra,

as follows:

"The proper manner of approach I consider is to take the facts as set out by

the applicant, together with any facts set out by the respondent which the

applicant cannot dispute, and to consider whether, having regard to the

inherent probabilities, the applicant could ("should" per the Goo/ case 12) on

those facts obtain final relief at the trial. The facts set up in contradiction by

the respondent should then be considered. If serious doubt is thrown upon the

case of the applicant he could not succeed in obtaining temporary relief, for

his right, prima facie established, may only be open to some doubt."

[33] In considering the inherent probabilities, as articulated in the Webster

case, the Court must also look at the question of the ultimate onus. As part of

the overall test however, Webster's case and Goof's case, when the Court

comes to consider whether the evidence tendered by the Respondents casts

a serious doubt on the Applicants' prima facie case, the Court, in considering

that particular aspect, namely whether the case put up by the Respondents,

casts a serious doubt, the Court is enjoined, as part of that exercise, to take

into account any onus which the Respondents would carry in the principal

case, that is when final relief is sought13. See also: Godbold v Tompson 1970

(1) SA 61 (0) at 63C 0.

[34] As regards a consideration of legal issues at the stage of interim relief,

the correct approach would appear to be that ordinary questions of law should

be decided at the interim stage whereas involved issues of law should be left

for determination by the trial Court.

[35] The fact that any interim relief granted may prove prejudicial to a party

does not mean that such relief amounts to a final and definitive order. In this

regard see African Wanderers Football Club (Pty) Ltd v Wanderers Club

1977(2) SA 38 (A) at 48G - H where the Court said : "The fact that the order

made by HOWARD J, could well prove to be prejudicial to the company does

12 Gool v Minister of Minister of Justice 1955(2) SA 682(C) 13 Salt of the Earth Creations et al v Stuttafords et al (unreported) 4720/ 2007

15

not therefore justify a contention that the order was a final and definitive order

and not merely an order ad servandam causam. Indeed, it very often happens

that, when a court is asked to grant a temporary interdict, and the right which

it is sought to protect is not clear, the court weighs, inter alia, the prejudice to

the applicant, if the interdict is refused, against the prejudice to the

respondent if it is granted14".

Applicants submissions for grant of interlocutory interdict:

[36] The applicant contends that she enjoys a prima facie right for the relief

sought and contends further that she has established such right for the

following reasons:

36.1 That she has a fixed term contract with the Municipality, which

expires on 30 June 2018 and accordingly can only be terminated on its

terms and lawfully. In this regard it is argued that on 06 December

2016 the resolution of Council confirmed her fixed term of employment,

in that she was appointed together with other Directors according to the

conditions and terms as stipulated in their respective contracts.

Effectively granting her security of tenure until 30 June 2018, in terms

of her fixed term employment contract.

36.2 That no other grounds are relied upon for the termination of her

contract other than the rationale in the letter of the Fifth Respondent

and the Report of the Second Respondent.

36.3 That her contract is extant and enforceable and she has a right

to performance and for the contract not to be interfered with,

repudiated or breached.

36.4 That she enjoys the right to negotiate the renewal of the

contract, as per the terms and conditions of her employment contract.

14 Eriksen Motors (Welkom) v Protea Motors Warrenton and another 1973(3) SA 685 (A)

16

36.5 That she enjoys a right to specific performance in terms of her

fixed term contract.

36.6 That she enjoys a right that the First to Fifth Respondents

conduct themselves in accordance with the Municipal Systems and

Structures Acts.

36.7 That she has a right to a review with prospects of success,

having due regard to the contents of the Second Respondent's report

which is premised on the Fifth Respondent's letter. It is further

submitted that the letter is factually incorrect and invalid.

36.8 That she has a right to lawful process. In this regard, submitting

that if the Fifth Respondent believes that she has any power to bring

about the termination of the Applicant's employment contract, she

should do so by way of the rule of law and that the court be

approached on valid and lawful grounds.

[37] The Applicant sets out the following reasons in support of a reasonable

apprehension of harm that she would suffer, if not granted temporary relief:

37.1 That there has been repeated non-compliance with the protocols

for tabling matters for discussion. Submitting further that the repeated

tabling of the proposal for the termination of her contract of

employment has not occurred in the normal course of business, and as

such there is clearly a ploy to force through the termination of her

contract of employment by unlawful means.

37.2 That there is a faction of Councillors who wish to unlawfully

force through her removal from office, in the hope of protecting

themselves in the face of an investigation by the Hawks into allegations

of intimidation and death threats on her life. In this regard, she fingers

the Sixth Respondent as aligning himself with such faction within the

Municipality.

17

37.3 That the Respondents have not allayed any fears that she has,

and if anything, their conduct has confirmed their intention of

termination at the first opportunity presented.

37.4 That the apprehension of harm to her rights are reasonable,

having due regard to the history of the matter and the conduct of the

Respondents.

38 As regards the requisite of a balance of convenience favouring the

relief sought by the Applicant, it is argued that:

38.1 The Respondents would not suffer any prejudice to wait for a

court of law to determine the issue regarding her contract of fixed term

employment, which in any event is a process as envisaged by

legislation.

38.2 There i~ no other reason raised for her dismissal than the

reasoning contained in the letter of the Fifth Respondent, which is ill

conceived and wrong. Further, to the extent that it is an administrative

action as contended by the Fifth Respondent that the only way to set

such action aside is by way of a review.

38.3 The prevailing facts and circumstances of this case are not

specifically or at least adequately dealt with by the applicable

legislation concerning the amalgamation of existing Municipalities into

a new Municipality.

38.4 The Applicant submits that she apprehends the unlawful

termination of her contract of employment, without the due process of

law. Further, that she enjoys no other remedy to prevent such

termination, save for the relief which she prays for in the notice of

motion.

18

Respondents submissions for refusal of interlocutory interdict:

[39] The Respondents on the other hand oppose the grant of the interim

relief and argue that the Applicant is not entitled to the relief as prayed for in

her notice of motion. I pause to mention that I do not intend to separate the

arguments of the respective Respondents, but will proceed to capture the

main thrust of their opposition and deal with such opposition cumulatively.

[40] The Respondents argue that the prima facie right relied upon by the

Applicant is the alleged right to remain in the Fourth Respondent's employ

until 30 June 2018, alternatively until 05 December 2020. Further arguing that

the Applicant has failed to establish a prima facie right, as set out

herein below:

40.1 Section 54A(3)(b) of the Systems Act provides that a decision to

appoint a person as Municipal Manager, and any contract concluded

between the Municipal Council and that person in consequence of the

decision, is null and void if the appointment was made in contravention

of the Systems Act.

40.2 Section 57(6)(a) of the Systems Act limits the duration of a

contract of employment for a Municipal Manager to a maximum of five

years, or one year after the election of the next Council of the

Municipality, whichever comes first. In this regard, the employment

contract of the Applicant has therefore lapsed on 09 August 2017, with

effluxion of time and operation of law.

40.3 Clause 2.2 of the Applicant's contract of employment which

provides that it terminates on 30 June 2018 is clearly in contravention

of the Systems Act and therefore visited with invalidity insofar as it

purports to exceed the election date of the Council elected after the

conclusion of the contract of employment, by more than twelve months.

Further that a finding of invalidity in respect of Clause 2.2 poses no

19

difficulties in respect of the remainder of the contract, due to the

severability provisions contained in Clause 19.

40.4 The results of the 2016 Municipal elections had become official

on 10 August 2016. Therefore the maximum period of twelve months

for the continuation of the Applicant's contract expired on 09 August

2017, which is a period of twelve months after the 2016 election.

40.5 The Applicant has failed to establish a prima facie right in

respect of the contention that a new (second) contract of employment

has been concluded between her and the Municipality which would

endure to 05 December 2020, by virtue of the Council resolution of 06

December 2016. In this regard, it is argued that such an appointment

was made in contravention of the Systems Act and accordingly null and

void, having due·regard to the provisions of Section 54A(3)(b).

[41] It has been argued that the Applicant will not suffer irreparable harm in

the event of it being proved that the termination of her employment was

unlawful as she will have a claim for damages.

[42] The Respondents contend that the balance of convenience does not

favour the Applicant at all. Arguing that the First to Fourth Respondents will be

compelled to give effect to an employment contract that is contrary to

legislative prescript. The Applicant, on the other hand has a claim for

damages should she be able to prove an unlawful termination of her

employment contract.

[43] The Respondents further contend that the Appl icant in fact does enjoy

an alternative remedy in the form of a claim for damages.

20

Analysis:

[44] The dispute between the parties can be crisply summarised as follows:

44.1 The Applicant contends that she has a fixed term contract with

the Fourth Respondent which endures until 30 June 2018 and that this

fact was further entrenched by the resolution of Council dated

06 December 2017, wherein she was appointed on the same terms

and conditions of her fixed term contract, effective 01 July 2014.

For the appointment until 30 June 2018, the Applicant relies on the

transfer of her contract of employment as Municipal Manager from

Tlokwe Local Municipality to the Fourth Respondent in terms of Section

14(3)(a) of the Municipal Structures Act, as well as a Council resolution

(C46/2016-12-06) adopted on 06 December 2016. It was resolved that

the directives of the MEC Department of Local Government and

Human Settlement dated 01 August 2016 (attached to item

SPC3/2016-08-17) be corrected and that the Applicant and other

Directors "be appointed according to the conditions and terms as

stipulated in their respective contracts".

The Respondents on the other hand contend that the Council

resolution of 06 December 2016 was unlawful and stands to be set

aside and to be declared null and void.

44.2 The Applicant further argues that at the time when her

employment contract was concluded the next election of the Tlokwe

Municipality, at the time, was to take place during the second half of

2016, after the results of those municipal elections would be published

in the Government Gazette. But for the intervening events and what

was contained in the written agreement, the Applicant's appointment as

Municipal Manager with the Tlokwe Municipality would have terminated

by operation of law "one year after the election of the next council" of

21

the Tlokwe Municipality at some stage during the second half of 2017,

all depending on the actual date of the election of the next council.

Submitting that the next election of the Tlokwe Municipality was

overtaken by the disestablishment of the Tlokwe Municipality on or

about 03 August 201'6, on which date the first election of the Council of

the superseding municipality commenced, as envisaged by Section

12(2)(b) of the Structures Act.

In this regard, the Respondents contend that the election of

03 August 2016 was in fact the "next meeting of council" of the Tlokwe

Municipality, and as such the Applicant's contract ended on

09 July 2017. On the other hand the Applicant interprets the election of

03 August 2016, as the first election of the new municipality. In

addition, relying heavily upon the resolution of 06 December 2016 that

in terms of her fixed term contract grants her security of tenure until

30 June 2018.

44.3 For the appointment until 05 December 2020, the Applicant

contends that a second employment contract was constituted by the

terms of her previous employment contract (01 July 2014) read with the

resolution of 06 December 2016. The Respondents are clear in their

opposition on this point by contending that such contract is unlawful, as

it does not comply with the legal requirements in terms of the

legislation.

[45] As regards a consideration of legal issues at the stage of interim relief,

the correct approach would appear to be that ordinary questions of law should

be decided at the interim stage whereas involved issues of law should be left

for determination by the trial Court. In my view the issues raised are involved

and cannot be determined by this court that is approached for interlocutory

relief.

22

[46] It is trite that the Applicant has to satisfy the requirements for the

interim relief sought. To this end, the Applicant contends that she has a prima

facie right to be employed as the Municipal Manager until 30 June 2018, by

virtue of her fixed term contract of employment and the Council resolution of

06 December 2016. I have also taken into account the different interpretation

of the litigants regarding the disestablishment and establishment of the

superseding council and whether the election of 03 August 2016 was the first

election of the council of the next meeting of the disestablished councils.

In my view that this is not an ordinary question of law as this scenario is not

specifically or at least adequately dealt with by the applicable legislation

concerning the amalgamation of existing Municipalities into a new

Municipality. Accordingly, this aspect is one that cannot be dealt with by a

court before which interlocutory relief is sought.

(47] After carefully considering the totality of the evidence before me,

having due regard to the applicable law and exercising my discretion, I am

satisfied that the Applicant has established a prima facie right to an extant

contract of employment with the Fourth Respondent, even if open to some

doubt. I am further satisfied that the Applicant has placed sufficient factors to

convince this court that she would suffer irreparable harm if she were not

granted the interim relief as prayed for, and that the balance of convenience

favours her. I pause to mention that I do not find favour in respect of the

argument of the Applicant regarding her contentions of a second contract of

employment enduring until 05 December 2020.

In the circumstances, the only appropriate remedy is the grant of an interdict

to the Applicant.

23

[48] In the result, I make the following order:

1. The First to Fourth Respondents are interdicted and restrained

from acting upon the letter alternatively notice of decision from

the office of the Fifth Respondent addressed to and received by

the Second Respondent in July 2017, and which is annexed to

the founding affidavit marked "FA9".

2. The First to Fourth Respondents are interdicted and restrained

from tabling, discussing, deliberating and/or deciding the validity

of the Applicant's employment and contract with the Fourth

Respondent.

3. Paragraphs 1 and 2 shall operate as an interim interdict and

Court order, pending the outcome of an application by the

Applicant, to be issued within 1 O days of this order:

3.1 to review the decision of the Fifth Respondent as

contained in the letter alternatively notice of decision from

the office of the Fifth Respondent addressed to and

received by the Second Respondent addressed to and

received by the Second Respondent in July 2017 and

which is annexed to the founding affidavit marked "FA9";

and/or

3.2 declaring that the Applicant is the appointed Municipal

Manager of the Fourth Respondent by fixed term contract

until 30 June 2018 alternatively 05 December 2020;

and/or

3.3 directing that the Fourth Respondent comply with the

Applicants Contract of employment and interdicting and

restraining the First to Sixth Respondents from bringing

about the termination of the Applicant's employment

24

without due process of law and compliance with the terms

of employment.

4. The costs of the application launched by the Fifth and Sixth

Respondents on 24 July 2017, in respect of the res judicata

defence are awarded jointly and severally against the Fifth and

Sixth Respondents on the scale as between attorney and client,

pursuant to the dismissal of such point in limine.

5. In addition, the First to Sixth Respondents are ordered to pay

the costs of the main application jointly and severally.

~A ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION

PRETORIA

Counsel for Applicant:

Instructed by:

Mr RS Willis

Dev Maharaj & Associates

Bryanston

Tel: 0117063333

devm@dmalaw.co.za

Counsel for 1st & 4th Respondents: Mr R Grundlingh

Instructed by: Scheepers & Aucamp Attorneys

Potchefstroom

Tel: 0182971217

michiel@advantage.co.za

Counsel for 2nd & 3rd Respondents Mr J J Pretorius

Instructed by: Henk Wissing Incorporated

Potchefstroom

Counsel for 5th Respondent

Instructed by:

Counsel for 6th Respondent

Instructed by:

Tel : 0182930190

henkw@intekom.co.za

Mr MG Hitge

The State Attorney

Mr M Tshingwala

Mmabatho

Tel: 0183840269

Mtshingwala@justice.gov.za

Mr L Nyangiwe

Morathi & Mataka Attorneys

Potchefstroom

Tel: 0182933669

raphepheng@mweb.co.za

25

Dates of hearing 24 July 2017 & 14 September 2017

Date of Judgment 13 October 2017