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[2013] ZASCA 163
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Democratic Alliance v Kouga Municipality and Others (151/2013) [2013] ZASCA 163; [2014] 1 All SA 281 (SCA) (26 November 2013)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 151/2013
DATE: 26 November 2013
In the matter between:
THE DEMOCRATIC
ALLIANCE APPELLANT
and
THE KOUGA
MUNICIPALITY FIRST RESPONDENT
THE EXECUTIVE MAYOR OF
THE FIRST
RESPONDENT, MR BOOI
KOERAT SECOND RESPONDENT
THE MUNICIPAL MANAGER
OF THE FIRST
RESPONDENT, MR SIDNEY
FADI THIRD RESPONDENT
THE ACTING MUNICIPAL
MANAGER OF THE FIRST
RESPONDENT, MS COLLEEN
DREYER FOURTH RESPONDENT
MR VERNON STUURMAN, A
MEMBER OF THE
MAYORAL COMMITTEE OF
THE FIRST RESPONDENT FIFTH RESPONDENT
MR PATRICK KOTA, A
MEMBER OF THE MAYORAL
COMMITTEE OF THE FIRST
RESPONDENT SIXTH RESPONDENT
MS VIRGINIA
CAMEALIO-BENJAMIN, A MEMBER OF
THE MAYORAL COMMITTEE
OF THE FIRST
RESPONDENT SEVENTH
RESPONDENT
MS ANGELINA MASETI, A
MEMBER OF THE
MAYORAL COMMITTEE OF
THE FIRST RESPONDENT EIGHTH RESPONDENT
MR PHUMZILE OLIPHANT,
A MEMBER OF THE
MAYORAL COMMITTEE OF
THE FIRST RESPONDENT NINTH RESPONDENT
THE HONOURABLE MR
MLIBO QOBOSHIYANE,
THE MEC: LOCAL
GOVERNMENT AND TRADITIONAL
AFFAIRS, EASTERN CAPE
PROVINCE TENTH RESPONDENT
MR J JANSEN ELEVENTH
RESPONDENT
MR V FELTON TWELFTH
RESPONDENT
MS T TOM THIRTEENTH
RESPONDENT
MS C BURGER FOURTEENTH
RESPONDENT
MS C ARENDSE FIFTEENTH
RESPONDENT
Neutral citation:
The
Democratic Alliance v The Kouga Municipality
(151/13)
[2013]
ZASCA 163
(26 November 2013)
Bench:
Ponnan,
Shongwe, Willis JJA and Van der Merwe and Meyer AJJA
Heard: 8 November
2013
Delivered: 26 November
2013
Summary
:
Local
Government: Municipal Systems Act 32 of 2000
– appointment of
managers contemplated by
s 56
sought to be set aside –
allegedly for want of compliance with
s 56(1)(a)
and
s 66(3)
of the
Act.
ORDER
On appeal from: Eastern
Cape High Court, Port Elizabeth (Revelas J sitting as court of first
instance):
The appeal is dismissed
with costs, such costs to include those consequent upon the
employment of two counsel.
JUDGMENT
PONNAN JA, (SHONGWE,
WILLIS JJA and VAN DER MERWE and MEYER AJJA concurring):
[1] The appellant, the
Democratic Alliance (the DA), a registered political party and
official opposition in this country, sought
to review and set aside
the appointments of the eleventh to fifteenth respondents
1
by the first respondent, the Kouga Municipality (the municipality),
as managers contemplated by s 56 of the Local Government: Municipal
Systems Act 32 of 2000 (the Act). The Eastern Cape High Court (per
Revelas J) dismissed the application, but granted leave to the
DA to
appeal to this court. Neither the eleventh to the fifteenth
respondents, nor any of the other respondents
2
who were cited in the application and against whom no relief was
sought, took any part in the proceedings either in the court below
or
in this court.
[2] Mr Nicolaas Botha,
the DA's representative on the municipality's council, alleged in the
founding affidavit in support of the
application:
'20. The purpose of this
application is to review and set aside the resolutions of the Mayoral
Committee of the First Respondent
taken on 11 June 2012 and of the
Council of the First Respondent taken on 29 June 2012 appointing the
Eleventh to Fifteenth Respondents
respectively as Director : Social
Services; Director : Infrastructure, Planning and Development;
Director : Administration, Monitoring
and Evaluation; Chief Financial
Officer; and Director : LED, Tourism and Creative Industries in the
administration of the First
Respondent on five year fixed term
contracts commencing initially on 1 July 2012 (in terms of the
resolution of the Mayoral Committee
aforesaid) and later amended by
the Council of the First Respondent to 1 August 2012. The Applicant
further seeks to have these
decisions declared unlawful and therefore
null and void.
21. I respectfully submit
that both the resolutions of the Mayoral Committee and the Council of
the First Respondent are reviewable
and liable to be set aside and
are therefore null and void in that these decisions were taken
contrary to the provisions of the
Local Government : Municipal
Systems Act 32 of 2000 (the Systems Act) and the First Respondent's
own policies and Rules of Order
in those respects set out below.
22. Section 56 of the
Systems Act enjoins a municipal council to appoint managers directly
accountable to the Municipal Manager
after consultation with the
Municipal Manager. The appointments of the Eleventh – Fifteenth
Respondents purported to be such
appointments.
. . . .
27. It is cardinal to the
appointment of any municipal employee including managers referred to
in Section 56(1)(a)(ii) that a vacancy
for such a position exists. A
'
vacancy
' is defined in the Recruitment, Selection and
Retention Policy of the First Respondent as a position on an approved
organogram
that is not filled. To the best of my knowledge there was
no approved updated organogram at any time relevant to this
application.
This is confirmed by a circular/report of the First
Respondent's standing committee dated 24 July 2012 which I annex
hereto marked
"A".'
[3] In opposing the
application, Mr Sidney Fadi, the municipal manager of the
municipality, explained:
'5. As is apparent from
the Applicant's founding affidavit, this application relates to the
appointment of the Eleventh to Fifteenth
Respondents as Managers in
terms of section 56 of the Municipal Systems Act. Such Managers are
senior Managers who report directly
to me as Municipal Manager. They
are generally referred to as section 56 Managers.
. . . .
13. The complaint is both
factually and legally incorrect. As will become apparent from what I
say below it was ultimately the First
Respondent's Council –
and not its mayoral committee – which resolved on 29 June 2012
that the section 56 Managers
be appointed as directors. This it did
on the recommendations of the First Respondent's selection committee
after due consultation
with me as Municipal Manager. The Applicant's
principal complaint is therefore without foundation.
. . . .
15.
15.1 These five important
positions all fell vacant during 2011. . . .
15.2 So as to ensure, as
best possible, the continued smooth running of the First Respondent's
affairs and the rendering by it of
services to the public, acting
section 56 Managers were appointed to these positions; their
appointments were, however, extended
from time to time. This was done
in terms of the provisions of section 56(1)(a)(2) of the Municipal
Systems Act. In terms of section
56(1)(c) of such Act, however, a
person appointed as an acting section 56 Manager may not be appointed
to act for a period that
exceeds three months.
16. In light of this
provision, the First Respondent received advice from its legal
representatives in terms of which it was made
to understand
(correctly) that the continued appointment of acting Municipal
Managers in these senior positions was not lawfully
permissible and
that steps had to be taken to resolve this urgently. The need,
therefore, for the appointment of permanent section
56 Managers was
real and urgent. This urgent need has been recognised throughout by
all concerned, including the Applicant and
its councilors.
17.
17.1 Before dealing with
how this was achieved, it is necessary to say something briefly about
the history of appointments of managers
to senior positions such as
those of the section 56 Managers. The present processes governing the
appointment of section 56 Managers,
as provided for by section 56(1)
of the Municipal Systems Act, were introduced into law by the
promulgation with effect from 5
July 2011 of the Local Government:
Municipal Systems Amendment Act, 7 of 2011.
17.2 Prior to that,
however, managers directly accountable to the Municipal Manager (and
indeed the Municipal Manager himself or
herself) were appointed by
the mayoral committee, in terms of a delegated authority, as read
with
section 60(3)
of the
Local Government: Municipal Structures Act
117 of 1998
.
17.3 Appointments of this
kind and in this fashion had occurred at the First Respondent for
some years prior to 5 July 2011.
17.4 When the appointment
process initially commenced the First Respondent's mayoral committee
bona fide
believed that the process it was required to follow
remained that which it had followed in the past. In this regard it
was mistaken,
but this only subsequently came to light when the
Applicant raised objections to the process followed by the First
Respondent's
mayoral committee and after advice was taken on the
matter in light of those objections. I revert to this aspect below.
. . . .
48.
Ad paragraph 27
:
I admit that the First
Respondent does not have an approved organogram reflecting that the
five vacancies had not been filled.
This, however, does not advance
the Applicant's position at all. It is common cause that the five
positions had to be filled. The
Applicant knew and understood,
moreover, that this had to be achieved urgently.
. . . .
54
Ad paragraph 36
:
54.1 I refer to what I
have already said concerning the absence of an organogram. I also
point out that there is no complaint from
the Applicant as to the
merits of the candidates identified and recommended by the selection
committee, and whose recommendation
has now been accepted by the
First Respondent's Council.'
[4] It was thus plain
even at that early stage that the municipality did not seek to defend
the validity of the resolution of the
mayoral committee in respect of
the appointment of the
section 56
managers. Its approach was
articulated thus by Mr Fadi:
'29 I am advised that the
effect of the provisions of section 56 of the Municipal Systems Act
is that the purported decision by
the mayoral committee on 11 June
2012 to appoint the section 56 Managers was
ultra vires
and of
no force and effect. The First Respondent accordingly places no
reliance whatsoever on the mayoral committee's purported
acceptance
of the selection committee's recommendations. The First Respondent
recognizes and accepts that it is the function and
responsibility of
its council to make the appointments, after consultation with me.
. . .
34. In the Applicant's
[that should read respondent's] submission, there is no reason why,
as a matter of law or principle, the
authority which has the power to
accept the recommendations (the First Respondent's council) should
not have done so in the circumstances.
The mere fact that the mayoral
committee may have erroneously purported to do so previously, does
not invalidate in any way whatsoever
the subsequent decision by the
First Respondent's council. In acting as it did, the First
Respondent's council acted within the
parameters of the statutory
framework and its conduct was accordingly lawful.'
[5] I have made reference
to the affidavits in greater detail than is absolutely necessary
because I do believe that when regard
is had to the allegations
contained therein, it is hard to resist the conclusion that the DA's
case underwent a dramatic shift
in reply. That much is apparent from
Mr Botha’s reply to paragraph 15.2 of Mr Fadi’s answering
affidavit, which reads:
'19.
AD PARAGRAPH
15.2
:
Section 56 of the
Municipal Systems Act is but one of the provisions of the Act that
has to be complied with for the legally valid
appointment of a
manager directly accountable to a municipal manager. I again refer to
the First Respondent's non-compliance with
Section 66 and the other
respects in which the First Respondent had failed to comply with the
Municipal Systems Act as set out
in the founding affidavit.'
It appears to me that it
was disingenuous for the DA to assert in reply that s 56 of the Act
was 'but one of the provisions' to
be complied with by the
municipality in circumstances where that had been the only provision
invoked by it in its founding affidavit.
Moreover, it had been
invoked in support of the contention ‘that the Mayoral
Committee is not empowered to make the appointments
which it did
having regard to Section 56 of the Systems Act’ rather than in
support of the contention sought to be advanced
by it in its replying
affidavit. Likewise, it was equally disingenuous for it to state: (i)
‘I again refer to the [municipality's]
non-compliance with s
66', when there is no reference whatsoever to that section in its
founding papers; or (ii) refer in vague
and general terms to the
'other respects, in which [the municipality] had failed to comply
with the [Act] as set out in the founding
affidavit’ when, in
truth, no such ‘other respects’ are alluded to in the
founding affidavit.
[6] Before this court,
the DA restricted itself to two contentions: first, that there was no
consultation with the municipal manager
as required by s 56(1)
(a)
of the Act; and, second, that the appointments were of no force
and effect by virtue of the provisions of s 66(3) of the Act.
As to the first
[7] Section 56(1)
(a)
provides:
'(1)
(a)
A
municipal council, after consultation with the municipal manager,
must appoint –
(i) a manager directly
accountable to the municipal manager; or
(ii) an acting manager
directly accountable to the municipal manager under circumstances
and for a period as prescribed.'
[8] In my view the first
contention fails at a factual level. In a supplementary affidavit
filed in answer to the new allegations
raised in the DA's replying
affidavit Mr Fadi stated:
'3.15. The Applicants
contend further that there was a lack of consultation as envisaged by
Section 56 of the Act. This is denied
in the answering papers and, by
way of amplification, I record as follows:
3.15.1. I attended all
selection committee meetings save for the meeting which was postponed
on 9 May 2012 and I was of course present
at the meeting of 4 May
2012 . . . I thus, at all material times, participated in the
discussions and consultations surround the
appointments in question.
3.15.2. Outside of the
selection committee meetings, I further held consultations in terms
of which I,
inter
alia
, raised an issue about the
suitability of Ms T. Mati to be appointed to the post of Director of
Administration, Monitoring and
Evaluation . . . given her lack of
experience. Pursuant to this consultation a decision was taken that
Ms Tom (the Thirteenth Respondent)
be recommended and appointed by
the municipal council. In the same context, I also raised concerns
about the appointment of one
Vumazonke who was accordingly not
eventually appointed.
3.15.3. Whilst I cannot
recall the exact dates of these consultations, I can say with
certainty that it was prior to 29 June 2012,
the date of the council
meeting when the directors were appointed.'
That allegation stood
unchallenged. I may add that even though this point was not squarely
raised in the DA’s founding affidavit,
Mr Fadi, explained in
his answering affidavit:
'24. It will be recalled
that I, as the Municipal Manager of the First Respondent, had been
involved directly in the selection process
and the subsequent council
meeting, although I did not attend every meeting of the selection
committee, at these times delegated
my authority to the Fourth
Respondent.'
. . . .
30. The Second Respondent
and his Mayoral Committee consulted with me, as it was duty bound to
do in terms of its delegated authority
conferred on the Second
Respondent and to be executed together with other members of the
mayoral committee, in terms of the provisions
of s 56(a)
of
the Municipal Systems Act of 2000, on 22 June 2012, on the
appointment of the Eleventh to Fifteenth Respondents, and I was in
agreement with the result. An extract of the delegations register is
attached hereto . . . .'
[9] It was thus not in
dispute that the municipal manager had indeed participated in the
selection process, the purpose of which
was to consider the
suitability of the proposed candidates. The selection committee met
on more than one occasion. According to
the municipality, the
proposed appointments were, in terms of accepted practice, debated
and fully ventilated at a full council
meeting on 29 June 2012 - a
meeting at which the municipal manager was present and in which he
actively participated. Significantly,
it was the municipal manager,
according to Mr Botha, who introduced the very proposals that were,
after a 'lively debate', accepted
by the council.
[10] The mischief which
the legislature sought to address in s 56(1)
(a)
of the Act, so
it seems to me, was that it did not (understandably so) want the
municipal manager to be excluded from decisions
to appoint managers
who were to be accountable to him and with whom he would be obliged
to work. The provision was thus enacted
so as to ensure that the
municipal manager would have an opportunity to comment on the
suitability of his proposed subordinates.
It cannot seriously be
suggested that this objective was not achieved in this instance given
the level and degree of involvement
of the municipal manager in and
indeed his influence on the appointment process. It is also
necessary, to bear in mind that s 56(1)
(a)
requires only that
the ultimate decision must be taken ‘after consultation with’
the manager. Bernard Bekink
Principles of Local Government Law
(2006)
at 331 (footnote 28) puts it thus:
'Although prior
consultation between the Council and the municipal manager should
take place, it is still the Council's decision
whom to appoint as
managers. Only consultation is required; not consensus or agreement .
. . .'
[11] Here the
unchallenged evidence is that the municipal manager was satisfied
with the appointment of the section 56 managers.
Tellingly, the DA
has not sought to suggest what additional consultation should have
occurred or in what respects the process was
inadequate. It follows,
in my view, that the first contention raised by the DA is without any
merit and must fail.
As to the second
[12] Section 66, headed
‘Staff establishments’ provides:
'(1) A municipal manager,
within a policy framework determined by the municipal council and
subject to any applicable legislation,
must –
(a)
develop a
staff establishment for the municipality, and submit the staff
establishment to the municipal council for approval;
. . .
(b)
provide a
job description for each post on the staff establishment;
(c)
attach to
those posts the remuneration and other conditions of service as may
be determined in accordance with any applicable
labour legislation;
and
(d)
establish a
process or mechanism to regularly evaluate the staff establishment
and, if necessary, review the staff establishment
and the
remuneration and conditions of service.
(2) Subsection (1)
(c)
and
(d)
do not apply to remuneration and conditions of service
regulated by employment contracts referred to in section 57.
(3) No person may be
employed in a municipality unless the post to which he or she is
appointed, is provided for in the staff establishment
of that
municipality.
. . .
(4) A decision to employ
a person in a municipality, and any contract concluded between the
municipality and that person in consequence
of the decision, is null
and void if the appointment was made in contravention of subsection
(3).
. . .
(5) Any person who takes
a decision contemplated in subsection (4), knowing that the decision
is in contravention of subsection
(3), may be held personally liable
for any irregular or fruitless and wasteful expenditure that the
municipality may incur as a
result of the invalid decision.'
[13] When pressed during
argument, counsel suggested from the bar in this court that the
genesis for the DA’s second contention
is to be found in the
following two sentences of paragraph 27 of its founding affidavit:
‘
To the best of my
knowledge there was no approved updated organogram at any time
relevant to this application. This is confirmed
by a circular/report
of the First Respondent's standing committee dated 24 July 2012 which
I annex hereto marked "A".'
[14] Annexure A, which is
dated 24 July 2012 and on the face of it appears to be a minute of a
meeting of the Finance, Administration,
Monitoring and Evaluation
Committee, a standing committee of the municipality, to the extent
here relevant, reads:
‘
ORGANOGRAM
REVIEW
'1.
Introduction
The Council has, in terms
of item: 11/12 CFAME2 dated 1 December 2011, rescinded its
organisational structure, staff establishment,
which technically
means that there is no organisational structure in place for the
Kouga Local Municipality.
2.
Background
The municipality has
again, in order to respond to the challenges facing its constituency
and the National and Provincial agenda,
changed its strategy in line
with the new mandate. The strategic objectives were replaced as
follows:
OLD DIRECTORATE
NEW
DIRECTORATE
Strategic
Services
LED,
Tourism & Creative Industries
Technical
Services
Infrastructure,
Planning & Development
Planning
and Development
Merged
with infrastructure, Planning and Development
Corporate
Services
Administration,
Monitoring & Evaluation
Community
Services
Social
Services
Finance
Finance'
[15] In a supplementary
affidavit filed on behalf of the municipality, Mr Fadi stated:
'3.8. In this context,
and in its replying papers, the Applicant, for the first time, makes
reference to section 66 of the Municipal
Systems Act and appears to
contend that on an interpretation of that section any appointments
which are made in the absence of
an organogram are automatically
invalid including the appointments of the Eleventh to Fifteenth
Respondents.
3.9. It is my respectful
submission that such an interpretation would result in an absurdity
if for no other reason than the fact
that it would mean that
appointments essential for the proper functioning of the municipality
(such as executive management positions),
and which all parties
acknowledge are essential, would be invalid if no organogram existed.
If the municipality were unable to
function it would self-evidently
be unable to fulfil the purpose for which it was created, namely to
serve the surrounding community.
3.10. In fact, if the
validity of appointments was dependent on the existence of an
organogram, it would mean that the hundreds
of contracts of
employment of all the employees of the municipality would be invalid
if no organogram existed. This would be equally
untenable.
. . .
3.12. I would thus simply
record that the correct position is that, at the level of fact, the
contentious positions do exist, the
municipality cannot function
without appointments into these positions and thus the municipality
was entitled, as a matter of contract,
to have made the appointments
which it did.
3.13. In this context,
and insofar as it may be necessary to do so, it is respectfully
pointed out that, in any event, in terms
of a decision by the council
a post establishment was created which included the positions to
which the Eleventh to Fifteenth Respondents
were appointed and this
regard I record as follows:
3.13.1. It is clear that
the Municipal Manager cannot appoint Section 57 Managers, nor can he
appoint himself.
3.13.2. Therefore, the
Municipal Manager as well as the appointment of Section 57 managers
rests with the Council.
3.13.3. Attached hereto
and marked Annexure "AA1" is a Council resolution dated the
First of November 2011 whereby the
Council attended to the amended
post establishment of Section 57 Managers, as well as the Manager's
amended salaries.'
[16] According to
Annexure AA1 to Mr Fadi’s affidavit, the municipality resolved
on 1 November 2011:
‘
i) That the
following Organizational Structure for the Kouga Municpality be
approved:
Department
Job
title
QTY
Post
Level
New/Old
Post
2011/
2012
Office of the
Municipal
Manager
Director:
Infrastructure,
Planning &
Technical
Services
1
S.
57
New Title -
Combined
position.
Interviews
completed,
awaiting
confirmation of
acceptance by
preferred
candidate
1
Director: Social
Development
1
S.
57
New Title –
Old Post
Vacant
1
Director: LED,
Tourism and
Creative
Industries
1
S.
57
New Title –
Old Post –
Position filled up
to 31 December
2011
1
Director:
Administration,
Monitoring
& Evaluation
1
S.
57
New Title –
Combined
position.
New appointed
Director from
1 October 2011
Director:
Finance
1
S.
57
New Title –
Old post
Position
filled up to 30 June 2012
ii) That the appointment
of the 5 Directors referred to above will be based on a 5 year
contract basis on an all inclusive package
of R780,000 per annum for
the 2011/2012 financial year, a performance bonus (as regulated by
the applicable legislation) and a[n]
annual salary increase according
to the South African Local Government Bargaining Council (SALGBC).'
It will be immediately
apparent that to all intents and purposes Annexure A to Mr Botha’s
founding affidavit mirrors Annexure
AA1 to Mr Fadi’s affidavit.
[17] Properly
comprehended therefore, the high water mark of the DA’s case
appears to be that a minute of a meeting of a standing
committee of
the municipality recorded that the Council of the municipality had
some seven months earlier ‘rescinded its
organisational
structure, staff establishment’ – whatever that may mean.
And on the strength of that we were urged
to conclude that the
appointments in question fell foul of s 66(3) of the Act. Various
obstacles, I daresay, stand in the way of
that conclusion: First, as
the minute of the Council meeting of the municipality of 1 December
2011 referred to in the introductory
paragraph of Annexure A was not
annexed to the papers, we can only speculate as to whether Annexure A
correctly records the import
and tenor of what had been resolved at
that earlier meeting. Second, it was unclear whether ‘organogram’
and ‘organisational
structure/fixed establishment’ are
synonymous and thus whether the absence of an organogram meant, of
necessity, that there
was no fixed establishment in place. Third, s
57 of the Act provides:
‘
(1) A person to be
appointed as the municipal manager of a municipality, and a person to
be appointed as a manager directly accountable
to the municipal
manager, may be appointed to that position only –
(a)
in terms of a
written employment contract with the municipally complying with the
provisions of this section; and
(b)
subject to a
separate performance agreement concluded annually as provided for in
subsection (2).'
That being the case, it
remains unexplained whether persons in management positions, such as
the eleventh to fifteenth respondents,
whose appointments are the
subject of separate contracts as also performance contracts, fell to
be included in the resolution rescinding
the ‘organisational
structure/staff establishment’.
Fourth, it is clear from
the DA's own papers that the new directorates (as envisaged by the
new organogram or staff establishment)
remained in existence when the
appointments were made. Annexure A on which the DA relied makes it
clear, to utilise the language
of the minute, that the old
directorate was being replaced by a new directorate, whilst Annexure
AA1 to Mr Fadi’s affidavit
alludes to ‘new title –
old post’ or ‘new title – combined position’.
One would therefore imagine
that self-evidently it is not possible to
create directorates without simultaneously creating posts of
directors (namely the posts
in question). The appointments to the
contentious positions, namely the four director positions and the
position of chief financial
officer, appear to have been made on the
premise that those directorates were then in existence. In fact the
appointments which
are the subject of this appeal reflect precisely
the positions as set out in the new directorates. There was thus
quite clearly
a staff establishment in place at least insofar as it
related to the directorate positions. Fifth, Mr Fadi in his answering
affidavit
stated:
'36. The First Respondent
has as yet not concluded formal written agreements with the section
56 Managers. The First Respondent
has, correctly in my submission,
adopted the position that it should not do so until such time as the
Tenth Respondent has deliberated
upon the lawfulness or otherwise of
the appointment of the section 56 Managers and he has elected to take
steps, or declined to
do so, to ensure compliance by the Municipal
Council with the Municipal Systems Act. Once that process has been
completed, and
dependent obviously upon the outcome thereof, the
First Respondent will conclude the necessary agreements of employment
with the
section 56 Managers.'
The rather speculative
response that those allegations elicited from Mr Botha in his
replying affidavit was:
'48.
AD PARAGRAPH
36
:
48.1 The Eleventh –
Fifteenth Respondents took up their employment in their respective
capacities with the First Respondent
on 1 August 2012. It would
therefore appear that they have signed formal written agreements as
is required by the Act.'
[18] It is disconcerting
to say the least that a simple throw-away line in paragraph 27 of the
DA’s founding affidavit could
be relied on as the foundation
for the second leg of the argument advanced on appeal. For, as
Mhlantla AJA remarked in
National Council of Societies for the
Prevention of Cruelty to Animals v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA):
'[29] It is trite law
that the applicant in motion proceedings must make out a proper case
in the founding papers. Miller J in
Shakot Investments (Pty) Ltd v
Town Council of the Borough of Stanger
, puts the matter thus:
"In proceedings by
way of motion the party seeking relief ought in his founding
affidavit to disclose such facts as would,
if true, justify the
relief sought and which would, at the same time, sufficiently inform
the other party of the case he was required
to meet." '
[19] In truth though, as
I have endeavoured to show, the DA’s case on this leg is really
to be sourced in Annexure A to Mr
Botha’s founding affidavit.
But, as Cloete JA observed in
Minister of Land Affairs and
Agriculture & others v D & F Wevell Trust & others
2008 (2) SA 184
(SCA) at 200b-c:
'It is not proper for a
party in motion proceedings to base an argument on passages in
documents which have been annexed to the
papers when the conclusions
sought to be drawn from such passages have not been canvassed in the
affidavits. The reason is manifest
– the other party may well
be prejudiced because evidence may have been available to it to
refute the new case on the facts.
The position is worse where the
arguments are advanced for the first time on appeal. In motion
proceedings, the affidavits constitute
both the pleadings and the
evidence
: Transnet Ltd v Rubenstein
, and the issues and
averments in support of the parties' cases should appear clearly
therefrom. A party cannot be expected to trawl
through lengthy
annexures to the opponent's affidavit and to speculate on the
possible relevance of facts therein contained. Trial
by ambush cannot
be permitted.'
[20] That is not to
suggest that a party in motion proceedings may not advance legal
argument in support of the relief claimed where
such argument is not
specifically mentioned in the papers. That, a court would
countenance, provided that the argument arises from
the facts
alleged. (See
Cabinet for the Territory of South West Africa v
Chikane & another
1989 (1) SA 349
(AD).) Here though, facts
which are relevant were not fully canvassed on the papers because the
DA's contention that in the absence
of an approved organogram the
contracts of employment of the eleventh to fifteenth respondents was
invalid by virtue of the provisions
of s 66 of the Act was similarly
an argument that was raised somewhat obliquely for the first time in
its replying affidavit.
[21] It follows that the
DA’s second contention must also fail. Given the obvious
importance of the matter, inasmuch as the
logical consequence of
counsel’s argument – one, I might add, from which counsel
did not shrink - is that a red line
may have to be drawn through all
appointments made by the municipality (not just those of the eleventh
to fifteenth respondents),
one would have expected far greater rigour
and attention to detail in the presentation of the case. It follows
that the appeal
must fail.
[22] It remains to
comment on the approach of the high court to the matter. The record,
in sum, ran to less than 270 pages. The
matter was argued as an
opposed motion on 6 December 2012 and on 20 December 2012 the high
court handed down its judgment that
spanned no more than three pages
and was rather cryptic. The application for leave to appeal was heard
on 5 February 2013 and the
next day an order issued granting leave to
appeal to this court. It was not accompanied by any reasons, so one
is none the wiser
as to what weighed with the high court in arriving
at its conclusion that leave ought to be granted to the DA to appeal
or why
it was thought that the matter was deserving of the attention
of this court.
[23] On 20 November 2012
in the First Annual British and Irish Legal Information Institute
(BAILII) Lecture, Lord Neuberger in an
address entitled 'No Judgment
– No Justice'
3
had this to say:
'Judgments are the means
through which the judges address the litigants and the public at
large, and explain their reasons for reaching
their conclusions.
Judges are required to exercise judgement – and it is clear
that without such judgement we would not have
a justice system worthy
of the name – and they give their individual judgement
expression through their Judgments. Without
judgement there would be
no justice. And without Judgments there would be no justice, because
decisions without reasons are certainly
not justice: indeed, they are
scarcely decisions at all. It is therefore an absolute necessity that
Judgments are readily accessible.
Such accessibility is part and
parcel of what it means for us to ensure that justice is seen to be
done, to borrow from Lord Hewart
CJ's famous phrase.'
[24] In a similar vein,
but closer to home, in an address at the First Orientation Course for
New Judges held at Magaliesberg on
21 July 1997, former Chief Justice
Corbett observed:
'As a general rule, a
court which delivers a final judgment is obliged to give reasons for
its decision. This applies to both civil
and criminal cases. In civil
matters this is not a statutory rule but one of practice. In
Botes
& another v Nedbank Ltd
the Appellate Division held that
where a matter is opposed and the issues have been argued, litigants
are entitled to be informed
of the reasons for the judge's decision.
The court pointed out that a reasoned judgment may well discourage an
appeal by the loser;
and the failure to state reasons may have the
opposite effect, that is, encourage an ill-founded appeal. In
addition, should the
matter be taken on appeal, the court of appeal
has a similar interest in knowing why the judge who heard the matter
made the order
which he did. But there are broader considerations as
well. In my view, it is in the interests of the open and proper
administration
of justice that the courts state publicly the reasons
for their decisions. Whether or not members of the general public are
interested
in a particular case – and quite often they are –
a statement of reasons gives some assurance that the court gave due
consideration to the matter and did not act arbitrarily. This is
important in the maintenance of public confidence in the
administration
of justice.'
4
[25] In the result the
appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For Appellant: S P
Rosenberg SC
Instructed by:
Minde Schapiro &
Smith
c/o Liston Brewis
Attorneys, Port Elizabeth
Symington &
De Kok, Bloemfontein
For First
Respondent: R G Buchanan SC (with P N Kroon)
Instructed by:
Van der Walt
Attorneys, Port Elizabeth
Honey Attorneys,
Bloemfontein
1
Mr J Jansen, Mr V Felton, Ms T Tom, Ms C Burger and Ms C Arendse.
2
The Executive Mayor of the First Respondent, Mr Booi Koerat (Second
Respondent), The Municipal Manager of the First Respondent,
Mr
Sidney Fadi (Third Respondent), The Acting Municipal Manager of the
First Respondent, Ms Colleen Dreyer (Fourth Respondent),
Mr Vernon
Stuurman, a member of the Mayoral Committee of the First Respondent
(Fifth Respondent), Mr Patrick Kota, a member of
the Mayoral
Committee of the First Respondent (Sixth Respondent), Ms Virginia
Camealio-Benjamin, a member of the Mayoral Committee
of the First
Respondent (Seventh Respondent), Ms Angelina Maseti, a member of the
Mayoral Committee of the First Respondent (Eighth
Respondent), Mr
Phumzile Oliphant, a member of the Mayoral Committee of the First
Respondent (Ninth Respondent) and the Honourable
Mr Mlibo
Qoboshiyane, the MEC: Local Government and Traditional Affairs,
Eastern Cape Province (Tenth Respondent).
3
http://www.supremecourt.gov.uk/docs/speech-121120.pdf
para 2.
4
The Hon MM Corbett 'Writing a Judgment – Address at the First
Orientation Course for New Judges'
(1998) 115
SALJ
116
at
117; see also The Rt Hon Sir Harry Gibbs GCMG, AC, KBE 'Judgment
Writing' (1993) 67
ALJ
. 494.