THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:  247/2012
Not Reportable

In the matter between:

PIERRE ANDRÉ NEL
APPELLANT

and

OUDTSHOORN MUNICIPALITY
RESPONDENT

Neutral citation:  Nel v Oudtshoorn Municipality (247/2012) [2013]
ZASCA 37 (28 March 2013)

Coram:
Mpati P,  Nugent,  Pillay JJA, Schoeman and  Mbha  AJJA.

Heard:
28 February 2013

Delivered: 28 March 2013

Summary: Review – Local Government: Municipal Systems Act 32 of
2000 – reinstatement of municipal manager after dismissal – whether
constitutes fresh appointment requiring compliance with provisions of
the Act.

ORDER

On appeal from: Western Cape High Court (Erasmus J)

The appeal is dismissed with costs including the costs of two counsel.

___________________________________________________________

JUDGMENT

SCHOEMAN AJA (MPATI P, NUGENT and  PILLAY JJA and MBHA
AJA CONCURRING)

[1] The respondent is the Oudtshoorn Municipality, established in terms
of the Local Government: Municipal Structures Act, 117 of 1998 (Municipal
Structures Act). The appellant – Mr Nel – is a member of the respondent’s
municipal council (the council). The second respondent – Mr Pietersen – is
the municipal manager of the first respondent.
[2] Mr Pietersen was appointed municipal manager in August 2007.
Towards the end of 2008 the council instituted disciplinary proceedings
against Mr Pietersen on two charges of misconduct.  The disciplinary body
found him guilty of the charges and recommended that he be summarily
dismissed. The recommendation was accepted by the council and in March
2009 he was dismissed. Mr Pietersen challenged the lawfulness of his
dismissal before the South African Local Government Bargaining Council
and the dispute was referred to arbitration according to the procedures of the
Bargaining Council. Shortly before the arbitration commenced the council
resolved – on 4 August 2010 – to settle the dispute on terms that were later

embodied in an award made by the arbitrator by consent.  The terms upon
which the dispute was resolved were, amongst others, that
‘1.
The employee will be reinstated in his position as Municipal Manager of the
employer with effect from Tuesday 10 August 2010;
2.
The reinstatement of the employee and the employment relationship between the
parties will be subject to and regulated by the terms and conditions of the employment
agreement concluded between the parties dated 1 August 2007, as amended by the
Addendum thereto dated 5 February 2008’.
[3] Mr Nel applied to the Western Cape High Court for an order
reviewing and setting aside the resolution taken on 4 August 2010 – under
the provisions of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) – together with certain interim relief that need not now concern us.
The application was dismissed by Erasmus J and this appeal against his order
is before us with the leave of this court.
[4] The court below singled out for decision the question whether the
adoption by the council of the resolution of 4 August 2010 constituted
‘administrative action’ subject to review under PAJA.  Holding that it did not
he dismissed the application on that ground.
[5] I do not think it is necessary to pronounce upon that issue.  It is trite
that an appeal lies against the order of a court and not its reasons for the
order.  In my view the appeal must fail even if the adoption of the resolution
falls within the purview of PAJA.
[6] The case made by Mr Nel against the council was that its resolution
constituted the appointment of Mr Pietersen to the position of Municipal
Manager, which was said to be in conflict with various provisions of the
Local Government: Municipal Systems Act 32 of 2000.  He relied in

particular on s 51 (which requires a municipality to establish and organize its
administration in accordance with various principles), s 55 (which imposes
various duties upon a municipal manager) and s 57 (which requires the
contract of employment of a municipal manager to comply with various
specified requirements).  His employment was also said to conflict with
Items 2(b) and 9 of the Schedule to the Act.1
[7] I do not find it necessary to detail the various provisions I have
referred to.  Suffice it to say that those provisions must be taken account of
when appointing a municipal manager. Counsel for Mr Nel properly
accepted that if the resolution did not constitute the appointment of Mr
Pietersen to that position then the appeal must fail.
[8] The resolution, in terms, was to ‘reinstate’ Mr Pietersen to his former
position.  In Jackson v Fisher's Foils Ltd [1944] 1 All ER 421 Humpreys J
quoted with approval the following dictum in Dixon (William) Ltd v
Patterson 1943 SC (J) 782 as to the meaning of ‘reinstatement’:
‘The natural and primary meaning of “to reinstate” as applied to a man who has been
dismissed (ex hypothesi without justification) is to replace him in the position from which
he was dismissed, and so to restore the status quo ante the dismissal.’
[9] In Equity Aviation Services (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration3 Nkabinde J, with reference to the provisions of s
193 of the Labour Relations Act 66 of 1995 (LRA) said the following on the
meaning of ‘reinstatement’:
‘The ordinary meaning of the word “reinstate” is to put the employee back into the same
job or position he or she occupied before the dismissal, on the same terms and conditions.

1 The Code of Conduct for Municipal Staff Members.
2 At 85.
3 Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration 2009 (1) SA
390 (CC).

Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at
placing an employee in the position he or she would have been but for the unfair
dismissal. It safeguards workers' employment by restoring the employment contract.
Differently put, if employees are reinstated they resume employment on the same terms
and conditions that prevailed at the time of their dismissal.’4
[10] From the provisions of the LRA and the cases I have cited it is clear
that by reinstating a dismissed employee the employer does not purport to
conclude a fresh contract of employment. The employer merely restores the
position to what it was before the dismissal.  That that was the intention and
effect of the resolution is also made clear by paragraph 2, so far as it
provides that the relationship between the parties would be ‘subject to and
regulated by the terms and conditions of the employment agreement
concluded between the parties dated 1 August 2007…’.
[11] Indeed, it would be absurd to construe the settlement of a labour
dispute on the terms on which this dispute was settled to constitute a fresh
appointment.  That construction would necessarily require the council to
advertise the position, interview numerous hopeful applicants, and then
decide who to appoint, which would make it impossible to settle a labour
dispute on these terms, contrary to the concept of reinstatement which is the
‘primary statutory remedy in unfair dismissal disputes’.5
[12] In my view the resolution taken by the council did not constitute the
appointment of a municipal manager as contemplated by the Act. His
appointment occurred in 2007 and the resolution did no more than to restore
that relationship. In those circumstances the resolution is not susceptible to
review on the grounds now advanced and the appeal must fail, albeit for
reasons different to those of the court below.

4 Para 36.
5 Equity Aviation para 36.

[13] The appeal is dismissed with costs including the costs of two counsel.

___________________

I SCHOEMAN
ACTING JUDGE OF APPEAL

APPEARANCES

FOR APPELLANT:
G OLIVER
Instructed by
Nic Barrow Attorneys,
c/o J Theron/Werksmans, Cape Town
Naudés Attorneys, Bloemfontein

FOR RESPONDENT:
N ARENDSE SC (with him C Carrolissen)
Instructed by
Duncan Korabie Attorneys, Wellington
Symington & De Kok, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
28 March 2013

STATUS
Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

PIERRE ANDRÉ NEL V OUDTSHOORN MUNICIPALITY (247/2012) [2013]
ZASCA 37 (28 MARCH 2013)

Today the SCA dismissed an appeal by the appellant, a member of the
respondent’s municipal council, against the order of the Western Cape High
Court, dismissing an application for the review of a decision taken by the
respondent’s municipal council.

It was the appellant’s case that the decision of the council to settle a dispute
before arbitration was to commence, amounted to the re-appointment of a
municipal manager without complying with the provisions of the Local
Government: Systems Act 32 of 2000. The SCA found that the decision of the
council constituted the reinstatement of the municipal manager in terms of the
provisions of s 193(1) of the Labour Relations Act 66 of 1995 and it was not a
decision to re-appoint the municipal manager.