Bojosinyane v Ditsobotla Local Municipality and Others

The applicant was appointed as Municipal Manager of Ditsobotla Local Municipality on a three-year fixed-term contract effective 8 July 2024. The third respondent subsequently challenged this appointment in the High Court, which application was struck from the roll. The fourth respondent (MEC) launched separate review proceedings to set aside the appointment alleging contravention of section 54A(3)(b) of the Municipal Systems Act. On 17 January 2025, the municipal council placed the applicant on special leave pending the review application. When the applicant challenged this decision, the council held a special meeting on 30 January 2025 and resolved to uplift the special leave and terminate his employment contract with immediate effect, claiming the appointment contravened the Systems Act. The council also withdrew its opposition to the MEC's review application. The applicant approached the Labour Court on an urgent basis seeking to declare the termination unlawful and void, and to be reinstated.

• Whether the Labour Court has jurisdiction to entertain an application challenging termination on grounds of unlawfulness and breach of contract
• Whether the matter was urgent
• Whether a municipality can terminate an employment contract by resolution based on alleged unlawfulness without first obtaining a court order setting aside the appointment
• Whether the principle of legality permits a public functionary to resort to self-help to correct an allegedly unlawful administrative decision
• What is the appropriate remedy where an employee has been unlawfully removed from office

1. The first respondent's decision to terminate the applicant's contract of employment with effect from 30 January 2025 is declared unlawful and void ab initio. 2. The contract of employment dated 7 and 8 July 2024 between the applicant and first respondent remains in force and effect and the applicant remains the municipal manager. 3. The applicant must report for duty on the next working day and the first to third respondents are ordered to allow him to report for duty and resume his duties. 4. The second and third respondents are each directed to file affidavits within 5 court days to show cause why they should not be ordered to pay costs on attorney and client scale in their personal capacities. 5. Costs reserved pending filing of the affidavits.

A municipality cannot terminate an employment contract on the basis that the appointment was unlawful or void without first obtaining a court order setting aside the appointment. Section 54A(3) of the Municipal Systems Act, which renders certain appointments null and void, does not confer power on a municipal council to unilaterally treat an appointment as void and disregard the contract and its legal consequences. Until an administrative act is set aside by a court in judicial review proceedings, it exists in fact and has legal consequences that cannot be overlooked. The rule of law obliges public functionaries to use the correct legal process and does not permit self-help. Courts alone, not public officials, are the arbiters of legality. Where an employee's dismissal is declared invalid (as opposed to unfair), the employee remains employed in law and does not require an order of reinstatement, but rather an order directing the parties to give effect to the continuing employment relationship.

The Court made strong observations about the conduct of the municipal council, describing it as acting "rogue, in bad faith and abused its power." The Court noted that the council appeared to constitute the special meeting of 30 January 2025 to circumvent both the urgent application before the Labour Court and the judicial review processes pending before the High Court. The Court observed that the council "wanted the applicant out of its employment by hook or by crook" and acted in a "legally 'skillful' and contrived move" by uplifting the special leave and terminating employment on the eve of the hearing challenging the special leave decision. The Court commented that "taxpayers' monies should not be funding what appears to be personal and emotional battles and self-created litigation." The Court also noted apparent conflicts of interest involving the third respondent and his attorneys (MPM Molefe & Associates), who were alleged to have a "generally corrupt relationship" with the third respondent and had sued the municipality for over R2 million in a settlement the third respondent entered into without defending the claim.

This case reinforces fundamental principles of administrative law and the rule of law in the municipal context. It confirms that municipalities, as public functionaries, cannot resort to self-help to correct allegedly unlawful decisions by simply rescinding their own administrative acts. The decision emphasizes that section 54A(3) of the Municipal Systems Act, which renders certain appointments null and void, does not empower a municipality to unilaterally treat an appointment as void without court intervention. The case illustrates the application of the Oudekraal principle in the labour/municipal context and clarifies the distinction between invalid dismissals (which require no reinstatement order as the employee remains employed in law) and unfair dismissals (which require reinstatement orders). It also demonstrates the Labour Court's jurisdiction to entertain legality challenges to State employment decisions beyond the fairness framework of the LRA. The judgment serves as a strong warning against municipal councils acting in bad faith and abusing their powers, including potential personal cost consequences for individual councilors.