The King Cetshwayo District Municipality in KwaZulu-Natal is heading to the Constitutional Court to fight the ceding of 666 employees by a contractor that previously worked on one of its water projects.

The company, Water and Sanitation Services South Africa (WSSSA), intends to transfer the workers to the municipality, which stated that the requirements for the move have not been met in terms of the Labour Relations Act (LRA).

According to the municipality, WSSSA merely lost its contract after the service level agreement was terminated, and the company was free to offer its services elsewhere with its assets and workforce intact.

It noted that the Labour Court and Labour Appeal Court, which both ruled against the municipality, erred and materially misdirected themselves and misconstrued and/or incorrectly applied the prevailing test when determining the matter.

“The point which the municipality wishes to stress at the outset is that even if the right to use its fixed assets were returned to the municipality by WSSSA, the municipality is not in a position to seamlessly continue providing or insourcing any one of the five services WSSSA provided, let alone all five services, more particularly by virtue of the fact that WSSSA took away all the assets it required to enable WSSSA to provide the services in question together with the municipality’s fixed assets,” King Cetshwayo Municipal Manager Philani Sibiya told the apex court.

The municipality first contracted WSSSA in 2003 to manage, maintain, and operate its water and wastewater treatment facilities and the associated distribution infrastructure services, and supply water – operational, maintenance, monitoring, and general asset management services.

The contract was extended no fewer than three times until it was terminated in 2020.

Sibiya complained that WSSSA wants to impermissibly dump its bloated staff complement of 666 employees, where only 132 would be needed for the same service, and additionally wants to side-step its responsibility for the cost of retrenching its staff.

WSSSA employed 666 employees to perform the services it was contractually obliged to fulfil, of which 591 employees were deployed in the operation and maintenance services.

The municipality explained that it granted WSSSA the right to use its infrastructure, comprising four of the municipality’s fixed assets, when performing its contractual duties while simultaneously being responsible for providing a variety of its own assets, tools, software, and employees.

Upon non-renewal of the agreement in 2020, WSSSA’s right to use the municipality’s fixed assets reverted to King Cetshwayo.

WSSSA Chief Executive Avril Luthuli told the Constitutional Court that after the termination of its contract in 2020, the company tried to engage with the municipality on the transfer of employees.

He said the municipality failed to engage on the transfer or accept WSSSA’s invitation to attempt to resolve the matter through mediation.

Luthuli said WSSSA approached the Labour Court after the termination of its services and due to the municipality’s refusal to engage constructively on exit arrangements.

The Labour Court concluded that it was satisfied that all the conditions for the transfer of the business as a going concern for the purposes of the LRA had been met.

The municipality then went to the Labour Appeal Court, which ruled against it.

At the Concourt, the municipality argues that there was no agreement that it would take over WSSSA’s workforce.

The matter will be heard next month.

loyiso.sidimba@inl.co.za

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