CASE LAW UPDATE

Facts: The applicant is a female business analyst who is currently residing in Pretoria and was born and raised in South Africa. She is in possession of a UK passport because her mother is a UK citizen, having been born in the UK. The respondent is a farmer and a South African citizen presently residing in the Free State. A child, O, was born of the relationship in 2022 and at Pretoria. The parties had been engaged to one another but the relationship turned for the worse and the engagement and relationship were terminated in late 2022. Since the birth of O and since she commenced working full-time, the applicant contends that she has looked after O with the support of her family from time to time and has been responsible for alI of O's needs which include financial, physical, social and developmental needs. The respondent is farming on his family farm in Senekal, Free State.

Application: The applicant decided around February 2023 to emigrate to the UK and has accepted an offer of employment in August 2024. Before this court is an urgent application for leave to relocate the minor child to the UK. The relief is opposed by the respondent on several grounds.

Discussion: The most important consideration is the interest of the minor child. In addressing urgency, the applicant contends that as the sole provider of her family and having been offered a once in a lifetime job offer, she is unable to decline same. Such a move will result in increased financial resources for O's upbringing. Furthermore, she has siblings who reside in the UK and a sister with whom she will stay on arrival in the UK who resides close to her employment. She has researched private nursery schools around her employment where she has considered enrolling O. Furthermore, she has researched areas which she could relocate to in the UK. The respondent denies that the matter is urgent and avers that the applicant is abusing the processes of the court by dragging her feet to institute this application so late in the day and that the urgency is self-created. The respondent further contends that the applicant strategically brought this application belatedly so as to deny the court the benefit of making use of the Family Advocate to investigate what would be in the best interest of the minor child.

Findings: The applicant has been the primary caregiver of the minor child since birth to date. The financial benefits to the applicant and the minor child should they emigrate will be many. This is inclusive of a secure and comfortable lifestyle with family close on hand; they will be residing in a country where the unemployment rates are far lower than in South Africa; and there are educational benefits. Should the applicant and the minor child not relocate, there will be dire professional and personal consequences. The applicant has indicated that she will be earning far in excess of what she earns at present. A refusal to grant the order will force the applicant to relinquish a life-enhancing opportunity and the welfare of the minor child is undoubtedly best served by her being in a happy and secure atmosphere in the primary care of the applicant, who to date, has been the primary caregiver. It would undoubtedly be in the best interest of the minor child that she relocates to the UK with her mother.

Order: This application is urgent. Leave is granted to the applicant to relocate with the minor child, O, from South Africa to the United Kingdom. Permission is granted to the applicant to apply for a UK settlement visa, so as to enable O to relocate to the UK with the applicant, without obtaining the consent of the respondent.

MOKOSE J

Facts: Ms Quinton was employed by the City of Cape Town (applicant) in December 2012 and from 2016 she was employed in the safety and security directorate as Professional Officer: Events Planning. It is common cause that Ms Quinton’s role was to liaise with event organisers and that she was regarded as the “face of the City”. In 2021, she was charged with five charges of misconduct and dismissed in September 2021, after a disciplinary hearing was held and she was found guilty of misconduct on all the charges levelled against her. The charges included gross dereliction for forwarding a business plan and multiple year strategy to an outside company, sending an incorrect approval to her supervisor, failing to perform her functions in events management, and changing an amount in a PowerPoint presentation.

Application: The applicant seeks to review and set aside an arbitration award where the arbitrator found that Ms Quinton’s dismissal was substantively unfair and ordered that she be reinstated retrospectively and that she be paid five months’ salary as backpay. The applicant took issue with the arbitrator’s findings in respect of charges 1, 2, 3 and 4 and for purposes of this judgment, it is not necessary to consider the evidence adduced or the findings made in respect of charge 5, as it is not subject to review.

Discussion: The arbitrator held that dereliction is an intentional or conscious failure of an employee to do his or her duty, it is a conscious or wilful neglect, and it differs from making errors. The arbitrator accepted that “dereliction of duty” has a very specific meaning in law and as it means an intentional or conscious failure of an employee to do his or her duty, it could not be true of Ms Quinton. Ms Quinton “did not abandon her work or intend to not fulfil her duty”. Instead, the arbitrator accepted that Ms Quinton failed to exercise reasonable care and made four mistakes and that “at worst, she was careless. That is negligence.”  The arbitrator accepted that the reputational and potential financial risk was real, but found that Ms Quinton’s “state of mind” and her “mental illness” were mitigating. The arbitrator observed that the applicant should have reacted differently and considered incapacity rather than disciplinary action and she found Ms Quinton’s “mental health” to be compelling in mitigation. The arbitrator concluded that there was no dereliction of duty and dismissal for negligence would not be appropriate.

Findings: The arbitrator’s findings effectively exonerated Ms Quinton for serious misconduct, which she admitted, without any consideration of the totality of the evidence and the grave and serious consequences of Ms Quinton’s conduct. The arbitrator’s findings were disconnected from the evidence presented. The applicant presented material and convincing evidence to show that Ms Quinton’s misconduct was not merely a “mistake” or being “careless”, which evidence was not considered by the arbitrator and of which she made no assessment and findings of fact. The applicant’s case is that all three of the City’s witnesses gave evidence relating to the trust relationship and to the effect that the relationship was broken down. The reputational and potential financial risk caused by Ms Quinton’s conduct was serious and real. The arbitrator’s conclusions and findings on Ms Quinton’s mental health were not supported by medical expert testimony and the evidence before her was no more than inadmissible hearsay evidence.

Order: The arbitration award is reviewed, set aside and replaced with an award that Ms Quinton’s dismissal was substantively fair. There is no order as to costs.

PRINSLOO J

Facts: Mr Nhlengethwa (the employee) was employed by Parsons Transport Operations (Pty) Ltd and is a member of the union. One of the directors  of the company is Mr Parsons. In 2019, the parties entered into a settlement agreement in terms of which the company undertook to re-employ the employee, with the issue of backpay to be dealt with separately. And so the saga began. In the last four years, this court has granted more than a dozen orders, all in vain, and with Mr Parsons being called upon to appear before court and show cause why he should not be held in contempt, another settlement agreement being entered, and another contempt rule nisi being issued. The rule nisi was repeatedly extended and provision was made for personal service on Mr Parsons.

Personal service: So what is the problem and why could personal service not be effected, year after year? The court file contains several affidavits in support of proof of service and returns of service by the sheriff, but not personally on Mr Parsons. It appeared that on various occasions, he was not available, refused to sign, and persons attempting to deliver the rule nisi court order were not allowed to enter the premises.

Discussion: The court has been unable to find any judgment of this court where it has been prepared to relax the requirement of personal service when it comes to contempt proceedings. Rule 9(1)(a)(iv) of the Rules of this court provides for service by email if the party concerned has an email address. However, when it comes to contempt of court, Rule 58(2) prescribes personal service. The High Court has allowed substituted service in contempt proceedings where personal service is provided for, but could not be effected. By way of example, Rule 23 of the Eastern Cape Rules implicitly provides for substituted service in contempt of court proceedings, with such applications having been entertained in that Division.

Findings: Rule 71 deals with “procedures not specifically provided for in these rules” and expressly authorises this court to have regard to, in this instance, Uniform Rule 4(2). Had the union filed submissions as directed, they may have formed the basis, at least informally, of an application for leave to effect substituted service, or such an application may have flowed from them. But in the absence of this, the court cannot issue an order mero motu. The union will be granted leave to bring such an application. This is, no doubt, cold comfort for the union and the employee who have fought tirelessly for years to enforce a settlement agreement that was made an order of this court, and are now faced with the prospect of having to bring a further and different application simply to get their contempt application heard. But this, unfortunately, is the product of Mr Parsons being, on the facts before the court, a serial evader of personal service.

Order: The contempt application is postponed sine die. The applicant is granted leave to bring an application for leave to effect substituted service on Mr Parsons.

MYBURGH AJ

Facts: The appellants (defendants) are former senior managers of the respondent, Nelson Mandela Bay Metropolitan Municipality (Municipality). The matter arises from the defendants’ respective roles in the Municipality’s appointment of Erastyle. It is common ground that Erastyle was appointed without a public tender process and in breach of the Municipality’s Supply Chain Management Policy; and that pursuant to the impugned appointment, the Municipality paid the following amounts to Erastyle: R5,263,179.89, R1,390,800 and R984,197.21 (unlawful payments). The Municipality instituted an action in the High Court against Erastyle and several officials of the Municipality, including the defendants. The Municipality sought orders declaring the impugned appointment unlawful and invalid; and directing Erastyle and the defendants to repay the unlawful payments, jointly and severally.

Appeal: The High Court held that section 32 of the Local Government: Municipal Finance Management Act 56 of 2003 (MFMA) creates a statutory claim for the recovery of unauthorised, irregular or fruitless and wasteful expenditure from the official liable for such expenditure, as a penalty, and not as damages. The High Court held that the impugned appointment was unlawful and invalid. The High Court granted judgment in favour of the Municipality against Erastyle, and the defendants, jointly and severally, for payment of the unlawful amounts, together with interest and costs. In this appeal, the defendants contend that the recovery of unauthorised, irregular or fruitless and wasteful expenditure from the person liable in section 32 must be interpreted to mean that officials are "legally answerable" or accountable. It does not mean that municipal officials are financially liable for that expenditure.

Discussion: The defendants submit that their interpretation accords with section 176 of the MFMA. It provides that municipal officials’ exercising a power or performing a function in good faith under the MFMA are not liable for any loss or damage resulting from the exercise of that power or the performance of that function; and that a municipality may recover from its officials any loss or damage it suffered because of the deliberate or negligent unlawful actions of those officials. Counsel for the Municipality submit that on its plain language, section 32 of the MFMA creates a statutory liability on the part of the office-bearers and officials referred to in section 32(1), who intentionally or negligently incur the expenditure described in that provision, in addition to any liability under the common law. Section 32(1), on its plain wording, renders municipal officials statutorily liable for unauthorised, irregular or fruitless and wasteful expenditure, in addition to any liability under the common law or any other legislation. The reach of section 32(1) and (2) is not limited to municipal officials, but extends to political office-bearers, who are not involved in the day-to-day running of a municipality.

Findings: The plain wording of section 32 makes it clear that recovery of unauthorised, irregular, and fruitless and wasteful expenditure by a municipality is not optional. Instead, a municipality is enjoined to recover such expenditure from the person liable for it, hence the word "must" in section 32(2). The Municipality proved that the defendants had incurred irregular expenditure and the impugned appointment and the unlawful payments were made deliberately or negligently in violation of the SCM policy, which the Municipality was enjoined to recover. Section 32 makes it clear that the place and function of section 32 is to create personal liability on the part of municipal officials in particular circumstances. Liability arises as soon as an official intentionally or negligently incurs unauthorised, irregular, and fruitless and wasteful expenditure: section 32 is not conditional upon a municipality sustaining loss or damage. In conceding that it did not pursue any claim against the third defendant, the Municipality, in effect, has abandoned the alternative order granted erroneously in its favour. The High Court’s order is thus amended accordingly. The effect of the High Court’s order is that the first, second and third claims are duplicated, and this was never intended by the Municipality nor the court. In this respect, the order is also corrected.

Order: The appeal is upheld in part. (See paras [1] to [5] of order).

SCHIPPERS JA (MOKGOHLOA JA, NICHOLLS JA, BAARTMAN AJA and MASIPA AJA concurring)