Bekentla Zwelitsha v King Sabata Dalindyebo Local Municipality (K.S.D)

The applicant was employed as an Inspector at King Sabata Dalindyebo Local Municipality since May 2005. In May-June 2006, he was appointed as Acting Assistant Security Manager with an acting allowance based on the difference between his salary and the post level 8 commencement notch. The acting appointment was at post level 12 and would continue until he was relieved, the situation was reviewed, or the post was filled. The applicant alleged he performed these duties continuously from 2006 but the acting allowance was not paid from October 2018, was paid briefly in July 2019, then stopped again later in 2019. The municipality abolished the 2004 staff establishment in 2010 and implemented a new structure. On 27 June 2012, the applicant was advised he was placed permanently as Senior Inspector (Task Grade T7) in the Access Control Section, effective 1 July 2012. The applicant signed this letter on 30 July 2012. The applicant sought enforcement of the acting appointment contract, claiming unlawful and arbitrary termination of his allowance.

• Whether there was a breach of the employment contract by the municipality in terminating the acting allowance
• Whether the municipality was required to provide formal notice of termination of the acting appointment
• Whether section 33(1)(e) of the Basic Conditions of Employment Act applied to serve as notice of termination
• Whether the applicant established the requirements for a mandatory interdict (clear right, reasonable apprehension of harm, and absence of alternative remedy)
• Whether the changes to the organizational structure and the 2012 letter constituted a review of the applicant's situation as contemplated in the original acting appointment

1. The application is dismissed. 2. Each party shall pay its own costs.

Where an employment contract provides for an acting appointment to continue until the employee is relieved, the situation is reviewed, or the post is filled, organizational restructuring that eliminates the post and formal written notification placing the employee in a different permanent position constitutes a lawful review of the situation that terminates the acting appointment. Section 33(1)(e) of the Basic Conditions of Employment Act, which requires employers to provide written information about deductions from remuneration, does not serve as a substitute for notice of termination of contract, which is governed by section 37 of the BCEA. An applicant seeking a mandatory interdict in an employment dispute must establish a clear contractual right, and where no breach of contract exists, the requirements for such relief are not met.

The court noted that the applicant's partial acknowledgment that the Acting Assistant Security Manager post was now referred to as Acting Principal Officer actually strengthened the municipality's argument that significant changes had been made to the organizational structure. The court observed that the explicit contractual terms, the letter of promotion serving as formal notice of changes, and the applicant's partial acknowledgment collectively sufficed to establish fair process and adherence to the principle of legality, even though the municipality was a state organ subject to legality principles rather than PAJA.

This case clarifies the distinction between section 33(1)(e) of the BCEA (relating to information on pay slips) and section 37 (relating to termination of employment). It demonstrates the application of the Plascon-Evans rule in resolving factual disputes in motion proceedings involving employment contracts. The case also illustrates that organizational restructuring and formal notification of changes to employment conditions can constitute a lawful review of an acting appointment, terminating obligations under the original acting contract. It reinforces that for mandatory interdicts in labour disputes, applicants must establish a clear contractual right, which requires proving a breach of contract.