Victory for Joburg city employees whose contracts were rescinded

The Johannesburg high court has ruled in favour of 77 South African Municipal Workers Union (Samwu) members who were dismissed by the City of Johannesburg in 2022. 

The high court declared on Thursday that the Samwu members were employees of the City of Johannesburg and that the municipality was obliged to consult them before amending their employment contracts. 

The employees were formerly employed on fixed-term contracts and their status was converted to that of permanent employment from March 1 2021. The conversion was effected after a decision of the mayoral committee.

However, on February 25 2022 the Johannesburg city council rescinded the decision of the mayoral committee on the grounds that the committee did not have the power to sanction the conversion.

The employees were informed of the decision three days later and were invited to make representations “regarding how their unlawful employment should be regularised”. 

Samwu responded in writing on March 4 2022 requesting an extension of the deadline for submissions. The union stated only a court may pronounce on the validity of the employment contracts. 

The city issued a directive on March 9 2022 referring to the irregular conversion of the fixed-term contracts, pointing out that the employees had failed to successfully challenge the rescission. 

The employees were then dismissed. 

Samwu and the employees approached the labour court on an urgent basis and the application was dismissed on the grounds that the court did not have jurisdiction. An application for leave to appeal was dismissed. 

They union and its members then approached the high court later in 2022. 

The union and the 77 argued that the conversion of the fixed-term contracts to permanent-status contracts was done lawfully and all policies and legislative requirements of the City of Johannesburg were complied with.

The city argued that the executive mayor did not have the power to appoint staff; this was an administrative function that was delegated to the municipal manager. 

It argued the municipal manager did not have the power to convert employment contracts from fixed-term to permanent as this would have a “massive affect on the finances of the city”. It said the decision would have to be taken with the approval of the council.

In his judgment, acting judge Johan Moorcroft said the documents emanating from the city indicated that the municipal manager recommended the conversion, that the conversion was approved, and that it was in the view of the executive mayor a decision properly taken after the municipality had applied its mind to the matter. 

“The conversion certainly had legal consequence and could not be set aside unilaterally. It follows that the [City of Johannesburg’s] decision to rescind the conversion cannot stand,” Moorcroft said. 

Samwu welcomed the decision and said it ensured stability and security in its members’ employment status. The union said since the dismissal, the majority of the employees were at home and a few had been brought back on fixed-term contracts 

Samwu Johannesburg regional secretary Thobani Nkosi said the ruling was a testament to the resilience and perseverance of the employees who were unlawfully served with termination letters by the DA-led government. 

He said under the previous administration led by former mayor Mpho Phalatse, the rights and livelihoods of the union’s dedicated workforce were unjustly threatened.

“However, justice has prevailed, and we commend the high court for its impartiality and commitment to upholding the rule of law.” 

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