CASE LAW UPDATE

Facts: The Municipality published an invitation to tender for the appointment of a service provider to render Value Added Tax (VAT) recovery services (the tender). The closing date for the tender was extended on which date Maximum Profit submitted its tender. The Municipality uploaded a closing register on its website. The closing register reflects that Maximum Profit tendered at a rate of 5,5% including VAT, whereas the joint venture tendered at a rate of 5%. The tender was subsequently awarded to the joint venture. Maximum Profit launched an urgent review application in the court a quo to review and set aside the decision of the Municipality. The court a quo placed particular emphasis on whether the applicant had satisfied the first requirement of section 62(1) of the Municipal Systems Act 32 of 2000. The point in limine was therefore upheld and the application dismissed with costs.

Appeal: This appeal is against the whole of the judgment of the court a quo, with leave of the court a quo granted. The issues are: whether the court a quo erred in dismissing the review application of the appellant (Maximum Profit) by upholding the point in limine of the Municipality; that Maximum Profit did not exercise its internal remedy provided in section 62(1) of the Municipal Systems Act, in circumstances where a decision had been taken by the Municipality to award a tender to the joint venture, rather than relying on section 7(2)(a) of the Promotion of Administrative Justice Act 3 of 2000; and whether or not alleged irregularities in the tender process amounted to PAJA grounds of review.

Discussion: The award of the tender to the joint venture came to the knowledge of Maximum Profit when it came upon such information on the website of the Municipality on 4 April 2022. A purposive interpretation of section 62(1) in the context of the peculiar circumstances of the matter, means that decision was “notified” to Maximum Profit on 4 April 2022, when it gained effective knowledge of the decision. Maximum Profit would therefore, on the uncontradicted evidence that it gained such knowledge on 4 April 2022, have been placed in position where it would have had 21 days from 4 April 2022 to lodge an internal appeal which period would have ended on 25 April 2022. This in circumstances where it is accepted that whilst the tender may have been awarded to the joint venture on 23 March 2022, no rights had yet accrued to the joint venture. Such rights only accrued on 22 April 2022. An internal appeal would have put paid to the date on which the rights accrued to the joint venture on 22 April 2022.

Findings: The argument by the respondents that Maximum Profit only had nine days to exercise its internal remedy, which it failed to do, does not accord with the purport of section 62(1) of the Municipal Systems Act. Rather than exercise its internal remedy, Maximum Profit within the period in which it could lodge an appeal (whether on the 9 days’ argument or 21 days from date it gained knowledge of the award of the tender), rather elected to approach the court a quo on an urgent basis within the period which the lodging of an appeal was still extant. Maximum Profit had to exhaust the internal remedy availed to it in section 62 of the Municipal Systems Act. Having failed to do so, the proverbial horse had bolted and the ultimate finding of the court a quo, albeit reached on a different basis, was correct in dismissing the application.

Order: The appeal is dismissed with costs.

PETERSEN J (HENDRICKS JP and DJAJE DJP concurring)

Facts: Ms Zwane (respondent) and her husband were married in community of property in 1993. There were no children born out of that marriage. The marriage relationship floundered and the respondent vacated the matrimonial home in 2011. In 2019, the husband was killed in a shooting incident. The family of the deceased, including his sister, Ms Molefe, refused the respondent the right to participate in the burial of her husband as they were under the wrong impression that the parties were divorced (he had sought a divorce but the parties were still married at the time of his death). Despite this, the respondent made available funds to enable the family to bury the deceased at Westpark cemetery as they did not have sufficient money. Ms Molefe’s details appear on the records of the City.

Appeal: Against a judgment by the High Court in which the City and City Parks & Zoo were ordered to recognise the respondent as the holder of rights to the grave site. The respondent had wanted permission to erect a tombstone on the gravesite of her late husband. She was told that only Ms Molefe was allowed to do so and the cemetery manager mentioned that it was a procedural matter based on the City of Johannesburg Cemetery & Crematoria By-Laws, Chapter 2, Section 8. The respondent then launched an urgent application.

Discussion: The respondent is not only the interstate heir, she is also the executrix of the estate. She chose the gravesite and paid for it. A reading of the By-law means that the cemetery manager should have convened a meeting of the respondent and Ms Molefe, to first determine if indeed there was a dispute or not. He failed to perform his duty as envisaged in clause 8(3) of the By-law. There is no-where in the clause where it is said that it is compulsory that the respondent should have first sought the consent of Ms Molefe. The decision of the manager was based on an incorrect and unfounded interpretation of the By-law.

Findings: The respondent automatically became owner of the contents of the grave by virtue of her marriage in community of property to the deceased, and that common law right could never be taken away from her by virtue of a municipal By-law. Clause 8(b) of the By-law is clear and unambiguous. It says that a person who paid the prescribed burial fees acquires private rights over the grave. It is uncontested that the respondent is the one who paid the prescribed burial fees. If that was not the case, why has contrary evidence not been produce either by the appellants or Ms Molefe; their silence means consent. the City’s argument was correctly summarised by the High Court as being based on a rigid and inflexible approach and it is to be regretted that the City took it upon itself to appeal this decision at great expenses. The respondent did not oppose the appeal, but that does not mean that the City was right to appeal. She is probably saving money.

Order: The Appeal is dismissed. The appellants’ attorneys are not entitled to charge any fees in relation to this appeal.

MAKUME J (SENYATSI J and MANOIM J concurring)

Facts: The employer is in the business of supplying access scaffolding to construction and industrial businesses, and the employee (Mr Vukhuthu) was in its employ as a supervisor from 2015. The employee was dismissed in 2021 following a disciplinary enquiry after having failed a breathalyser test. At the CCMA it was submitted that the dismissal was harsh in that at the disciplinary enquiry, the employee had pleaded guilty, shown remorse, apologised and requested a second opportunity in order to correct his behaviour. On behalf of the employer it was submitted that an aggravating factor was the employee’s senior position and his responsibilities. It was submitted that through his conduct, the employee had broken the trust relationship.

Application: NUMSA acting on behalf of its member, the employee, approached the court seeking an order reviewing and setting aside the arbitration award issued by the commissioner at the CCMA. In the award, the commissioner had found that the dismissal of the employee was procedurally and substantively fair.

Discussion: Reliance was placed on the employer’s Disciplinary Code and Procedure, which amongst the offences listed was that of “Being under the influence of alcohol or intoxicating drugs at work”. It was submitted that since the breathalyser test indicated “Red”, this meant that the employee was under the influence of alcohol. In this case, it was common cause that after the employee had failed the breathalyser test and he was not permitted to enter the workplace. According to the employee, there is no rule that he had breached. Annexure A to the Disciplinary Code of Conduct lists a number of offences, and it only makes reference to “Being under the influence of alcohol or intoxicating drugs at work”. There is no reference to an offence related to “failing a breathalyser test”.

* See paras [20]-[33] on procedural fairness, hearsay evidence and representation at the disciplinary hearing.

Findings: The employer sought to draw an inference from the failure of the breathalyser test and other factors that the employee was under the influence of alcohol. This was for the purposes of justifying the fairness of a dismissal in accordance with the sanction for offences outlined under the Code of Conduct. The commissioner, however, misconceived the nature of the enquiry he ought to have undertaken in establishing whether the employer had discharged its onus in proving that a failure of a breathalyser test was sufficient for a dismissal under the rule and offences related to being under the influence of alcohol. The appropriateness of the sanction was challenged primarily based on its alleged inconsistent application in the light of other employees having been issued with final written warnings for the same conduct. The employer had justified the distinction on the basis that the employee was a supervisor. Even if this might have been so, that distinction was premised on the approach that he was under the influence of alcohol, when this was not the case.

* See Samancor Chrome Ltd v Willemse [2023] ZALCJHB 150.

Order: The arbitration is set aside and replaced with one finding the dismissal of Mr Vukhuthu procedurally and substantively unfair. The employer is ordered to reinstate him, retrospective from the date of his dismissal, and on the same terms and conditions. Mr Vukhuthu is not entitled to any form of back-pay in the form of remuneration or benefits as a result of his retrospective reinstatement. Each party is to pay its own costs.

TLHOTLHALEMAJE J

Facts: The applicant provides bus transport services to commuters and to enterprises which provide transport for their employees. The matter concerns a dispute between the applicant and AMCU (and its members) at the applicant’s Virginia depot. The dispute between the applicant and AMCU relates to the provision of a transport allowance. AMCU’s members demanded to be paid a transport allowance. The applicant and AMCU signed a settlement agreement. The settlement agreement recorded that it was an agreement between Mega Bus Virginia, AMCU and NUMSA. NUMSA is the majority union at the Virginia depot. In terms of the agreement, the parties agreed that the transport allowance would be settled on the basis that the applicant would implement and effect the payment of a monthly staff transport allowance of R500 to all affected employees of the applicant at the Virginia depot. The agreement was signed by the applicant and AMCU, but it was not accepted and signed by NUMSA.

Review: AMCU referred a dispute about the application and interpretation of the settlement agreement to SARPBAC and the dispute was arbitrated. The arbitrator found that NUMSA, the majority union, did not sign the settlement agreement, that it was signed by the applicant and AMCU and that the applicant did not implement the R500 transport allowance, as per the agreement. The arbitrator ordered the applicant to pay the AMCU members a R500 transport allowance retrospectively. The applicant seeks to review and set aside the arbitrator’s award.

Discussion: The applicant’s case is that in reaching her conclusion, the arbitrator failed to consider and interpret the terms of the agreement, and she erred in finding that a valid agreement had been concluded between the applicant and AMCU. The applicant’s primary ground for review is that in the absence of an agreement with NUMSA, no collective agreement came into being in the first place and any finding to the contrary is unreasonable. There is merit in the applicant’s ground for review. On the facts before the arbitrator, it was already common cause that the collective agreement was not implemented, and the arbitrator misdirected herself as to the nature of the enquiry and the issue she had to decide. The arbitrator had to consider and interpret the terms of the agreement and decide whether a valid agreement was concluded, which was capable of implementation and enforcement. The provisions under clauses of the agreement clearly indicate that the proposed settlement agreement was a tripartite one between the applicant, AMCU and NUMSA, in which all the parties had to agree to the withdrawal of the staff transport provided by the applicant and for the payment of a travel allowance instead. The effect of the settlement agreement would be that the terms and conditions of all the employees at the Virginia depot would be varied with respect to the provision of transport.

Findings: Notwithstanding all the aspects of the settlement agreement which demonstrate that a tripartite agreement was envisaged, the arbitrator concluded that the agreement recorded a bilateral agreement between the applicant and AMCU. The applicant provided sound and valid reasons as to why it was not possible to implement different terms and conditions for members of the two different trade unions. The arbitrator failed to consider those and found that it was no more than “peripheral to the issue in dispute”. The arbitrator failed to give effect to the intention of the agreement, namely, to end a strike and to uniformly regulate the terms and conditions of employment. The arbitrator incorrectly interpreted the terms of the settlement agreement, and this error was of such a material nature that it resulted in a decision which, on a proper interpretation of the settlement agreement, was one that a reasonable arbitrator, on the material before her, could not reach. The arbitration award is not rational or reasonable and is to be interfered with on review.

Order: The arbitration award is reviewed and set aside.

PRINSLOO J