The City of Tshwane’s rescission application to overturn a July 2022 court order mandating the municipality to pay Kamogelo Legari’s salary has been dismissed by the North Gauteng High Court.
Acting Judge W Domingo found that the City of Tshwane’s rescission application lacked substantive legal grounds. The original ruling, handed down by Judge Harshila Khoosal Kooverjie in July 2022, directed the municipality to pay Legari his monthly salary for a specified period. Tshwane did not contest the order at the time but later sought to overturn it, citing concerns regarding the legal framework governing Legari’s employment.
The dispute stems from an urgent application filed by Legari, asserting his entitlement to salary payments for April to June 2022. The order was granted unopposed, leading to a clarification ruling in September 2023, which specified the salary amount omitted in the original judgment.
Municipality’s key argument
The City of Tshwane Metropolitan Municipality’s rescission application hinged on the argument that Legari’s simultaneous employment in another municipality should have constituted automatic resignation under municipal regulations. However, the court ruled that the relevant regulations had not been presented during the original proceedings, meaning no erroneous grant could be established.
Acting Judge Domingo ruled that the City of Tshwane Metropolitan Municipality failed to meet jurisdictional requirements for rescission under Court Rules and common law, which demand a valid explanation for non-participation and a bona fide defence. The judgment was critical of Tshwane’s failure to engage adequately in the original hearing.
In reviewing the evidence, the court examined correspondence from Tshwane’s Human Resources Office, which informed Legari that his employment in another municipality was permissible. The court found that this correspondence contradicted the municipality’s later argument.
Acting Judge Domingo stated: “I am of the opinion that the applicant in this matter seeks to raise a defence against the correspondence provided by its own official(s) to the respondent. If the Judge Kooverjie court had explicitly been presented with Regulation 3(5) read with section 21(2) of the Local Government Municipal Structures Act, 1988, I am not convinced that such an argument would have precluded the granting of the order.”
Although the court granted condonation for the late filing of the rescission application and responding affidavit, the substantive request was denied. As a result, the City of Tshwane Metropolitan Municipality was ordered to bear the costs of the application.
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