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A former official of the Umsobomvu Local Municipality in the Northern Cape has lost his appeal in the Labour Court against the termination of his employment.
The South African Municipal Workers’ Union (Samwu) took the municipality to the Labour Court in an attempt to review and overturn the 2021 dismissal of Ntoyakhe Mgcineni.
However, the court rejected their application on 20 June 2024.
Following the dismissal, the applicants filed for leave to appeal the decision.
Mgcineni, who served as the section head of community development at the municipality, was considered to have resigned after being elected as a councillor.
Prior to the local government elections on 1 November 2021, he joined the Umsobomvu Residents Association (URA) and appeared as the second candidate on the proportional representation (PR) list for the organisation.
By 2 November, it became clear that the URA had secured two seats in the council.
Mgcineni then wrote to the organisation on 3 November, requesting the withdrawal of his name from its candidate list.
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The URA accepted his withdrawal and notified both the municipality and the Electoral Commission of South Africa (IEC) on 4 November that he would be replaced by another candidate.
On 8 November, Mgcineni reported to the municipality for duty but was turned away.
His supervisor informed him that he could not return to work, as he had been elected as a councillor.
This was confirmed the following day, 9 November, when the IEC officially published the election results.
On the same day, the municipality sent a letter to Mgcineni, stating that he was considered to have assumed office as a councillor and was, thus, deemed to have resigned the previous day.
The municipality cited the Local Government Municipal Structures Amendment Act, which came into effect on the day of the local elections.
The Amendment Act stipulates that an elected councillor is considered to have assumed office on the date the election results are declared.
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It also prohibits political parties from altering or supplementing their candidate lists between the closure of nominations and the day after the first council meeting.
Furthermore, the Act specifies that a candidate on a party list ceases to be a candidate either when they assume office as a councillor or when they resign from the list through written notice to the chief electoral officer (CEO) of the IEC.
The municipality later clarified, in a letter dated 11 November, that Mgcineni had not been fired.
Nevertheless, the former municipal employee and Samwu filed a dispute with the South African Local Government Bargaining Council (SALGBC), claiming unfair dismissal.
Leon Joubert, the arbitrator for the SALGBC proceedings, determined that Mgcineni had not been dismissed by the municipality; rather, his employment contract had been terminated by “operation of law”.
Mgcineni brought his case to the Labour Court, where it was heard on 18 June.
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Two days later, Judge Reynaud Daniels dismissed the case, stating that Mgcineni was “the author of his own misfortune”.
The judge noted that the former municipal employee had failed to seek legal advice before choosing to become a councillor and subsequently withdrawing his candidacy.
Additionally, the judge highlighted that it appeared Mgcineni was unaware of the Amendment Act’s commencement and its implications.
In delivering his judgment on the appeal on 27 September, Daniels highlighted that Mgcineni seemed to acknowledge that the URA was prohibited from altering its candidate list, as outlined in the Structures Act.
“In any event, as the third respondent submits, by 3 November, the applicant was no longer merely a candidate.
“The election had been held, and he was a councillor-elect. There are no prospects of success here,” the judgment reads.
He rejected the former municipal employee’s argument that the Structures Act violated his constitutional right to fair labour practices.
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“This challenge was not raised during the review application itself and is raised for the first time on appeal. This is improper.
“Furthermore, ordinarily, when the content of legislation is the subject of constitutional challenge, the executive must be cited,” Daniels explained.
The judge, therefore, dismissed the leave to appeal application with no costs order.
“The further attacks on the judgment of this are set out in extremely broad strokes, are without substance, and therefore do not merit a response.”
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