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[2023] ZAFSHC 213
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South African Municipal Workers' Union v Maluti-A-Phofung Water (SOC) Ltd and Others (5265/2022) [2023] ZAFSHC 213 (29 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
number: 5265/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
SOUTH
AFRICAN
MUNICIPAL
WORKERS'
UNION
Applicant
And
MALUTI-A-PHOFUNG
WATER (SOC) LTD
1
st
Respondent
MALUTI-A-PHOFUNG
MUNICIPALITY
2
nd
Respondent
ACTING
CEO:
MALUTI-A-PHOFUNG
WATER
(SOC)
LTD:
MR LEPHUTHING
3
rd
Respondent
MEC:
DEPARTMENT OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS:
FREE
STATE
4
th
Respondent
DL
ERNEST
5
th
Respondent
M
XOLANI
6
th
Respondent
L
MALAKOANE
7
th
Respondent
TC
SEKHELE
8
th
Respondent
MR
RANTSHO
9
th
Respondent
JG
MAHLANGU
10
th
Respondent
I
MOSIA
11
th
Respondent
NM
MBELE
12
th
Respondent
LS
MOKOENA
13
th
Respondent
LW
MAPHIKE
14
th
Respondent
CORAM:
VANZYL,
J
HEARD
ON:
1
DECEMBER 2022
DELIVERED
ON:
29 MAY 2023
[1]
This matter was initially launched as an urgent application which
served before Mhlambi, J on 10 November 2022 in chambers.
Mhlambi J
made an order in terms of a draft order:
"1.
The application is postponed, based upon the proposal of the
applicant, to the opposed roll
of 1 December 2022.
2.
None
of the parties forego any rights they may have to argue any of the
raised points of law.
3.
The
costs of today stand over for adjudication on 1 December 2022."
[2]
In terms of the notice of motion the applicant 1s seeking the
following relief:
"1.
That this application be heard as an urgent application....
2.
That
the appointments of the fifth to fourteenth respondents ('the
appointments') be declared to be unlawful and/or irregular.
3.
That
the appointments be reviewed and/or set aside.
4.
That
the first respondent and the third respondent, and any other
respondent opposing this application, be ordered to pay the costs
of
the application."
[3] Only
the first and third respondents opposed the application
and duly
filed an answering affidavit, in response to which the applicant
filed a replying affidavit.
[4] The
fourth respondent filed a notice to abide by the decision
of the
court.
Succinct
background to the application:
[5] The
first respondent is a state-owned company and Municipal
entity as
envisaged by section 1 of the Local Government: Municipal Systems Act
with principal place of business situated at Phuthaditjhaba.
[6] The
third respondent is, according to the applicant,
"the
purported current acting CEO of the first respondent”.
The applicant disputes the validity of the appointment of the
third respondent.
[7] The
fifth to fourteenth respondents are employees who had recently
been
employed by the first respondent as General Workers. It is the
appointment of these employees which forms the crux of this
application. It is the applicant's case that the employees were
employed, effectively through the first respondent, without any
process having been followed and contrary to the provisions of the
Local Government: Municipal Systems Act, the Local Government:
Municipal Staff Regulations and the first respondent's Recruitment
and Selection Policies. According to the applicant the appointments
were made without following any prescribed process whatsoever.
[8] It
is consequently the applicant's case that the appointment
of the
employees should be declared to be unlawful and/or irregular, with
the consequence that same should be reviewed and/or set
aside.
[9] In
dealing with the merits of the application, the applicant
sets out as
to when it became aware of the appointment of the employees and the
subsequent events, which included a letter of demand,
dated 13
October 2022, which
"the applicant directed ....to the first
respondent”,
attached to the founding affidavit as annexure
"FA2", and a further letter of demand, dated 14 October
2022, directed
by the applicant's attorneys of record to the first,
second and fourth respondents, a copy of which is attached to the
founding
affidavit as annexure "FA3".
[10]
The applicant further dealt with the issue of urgency of the
application.
[11] In
the answering affidavit of the first and third respondents, which was
deposed
to by the third respondent, the third respondent, in addition
to dealing with the merits of the application, also raised the
following
points
in limine:
1. Urgency;
2. The
applicant's lack of
locus
standi
and the
court's lack of jurisdiction;
3. The
lack of authority;
4. The
applicant's failure to have instituted the application m terms of
Rule 53.
Authority:
[12] For
reasons which will become evident, I intend to deal with this point
in limine
first.
[13] The
founding affidavit was deposed to by Mr Tiisetso Mahlatsi and at
paragraph 1 of
the founding affidavit he stated as follows:
"I am an adult male
and Provincial Secretary of the Applicant, the South African
Municipal Workers' Union ('SAMWU'), a trade
union duly registered in
terms of the Labour Relations Act, 68 of 1996 ('the LRA'). I am duly
authorised to depose to this affidavit."
[14] In
paragraphs 32 and 34 of the founding affidavit allegations were made
that the applicant's
Provincial Chair, Mr Tseko Mokoena, made contact
with the first respondent's Industrial Relations Officer, Mr Finger,
and with
the Human Resource Manager, Mr Alexandra, during the week of
11 October 2022. Mr Finger informed the applicant's Provincial Chair
that he was instructed to induct the appointed respondents but that
he had no knowledge of their employment prior to receiving
the
instruction to oversee the induction. Mr Finger further indicated
that he also questioned the procedure in appointing the employees,
but that he was told not to concern himself with that and to do the
induction. Mr Alexandra told the Provincial Chair that he was
surprized by the appointments as the positions had not been
advertised and no interview or selection process was followed.
Despite
an undertaking in paragraph 32 that a confirmatory affidavit
by the Provincial Chair will be filed as soon as reasonably possible,
no such affidavit has been forthcoming.
[15] I
will later deal with the correspondence addressed on behalf of the
applicant.
The
answering affidavit on the issue of authority:
[16] In
the answering affidavit, under the heading pertaining to the point
in
limine
regarding authority, the third respondent stated as
follows on behalf of himself and the first respondent:
"58. The
applicant as a trade union has its own head office in Johannesburg.
59.
The
deponent alleges that he is the Provincial Secretary, presumably for
the Free State Province.
60.
The
constitution of the applicant does not confer the Provincial
Secretary with the power and authority to launch legal proceedings
in
the name of the applicant; alternatively, the authority alleged by
the deponent is not supported by any form of proof that these
legal
proceedings were authorised by the applicant.
61.
I
ask the court to dismiss this application with costs just on this
point."
[17] In
paragraph 83 of the answering affidavit the third respondent referred
to
the fact that a confirmatory affidavit of Mr Tseko Mokoena had not
been filed and that the allegations pertaining to the conversation
between him and Mr Finger, are denied and stand to be struck.
[18] The
third respondent further indicated that he spoke to Mr Finger who
advised
him that he did in fact receive a call from the Provincial
Chair of the applicant, Mr Tseko Mokoena, who asked him about the
appointment
of the General Workers, but without discussing the
details thereof, Mr Finger referred the Provincial Chair of the
applicant to
the first respondent's Executive Manager: Corporate
Services, Mr Pitso Mokoena, advising the Provincial Chair that
anything involving
human resources, must be addressed to the
last-mentioned Mr Mokoena. Subsequent to the short conversation, Mr
Finger received a
WhatsApp message from the Provincial Chair of the
applicant in which he asked for the names of the General Workers,
which request
Mr Finger did not comply with. Mr Finger's confirmatory
affidavit was attached to the answering affidavit as annexure "AA4".
[19] In
response to the allegations in the founding affidavit pertaining to
the conversation
of the Provincial Chair of the applicant with Mr
Alexandra of the first respondent, the third respondent indicated
that the allegations
are denied and again requested that in the
absence of a confirmatory affidavit by the Provincial Chair, the
allegations should
be struck. The third respondent, however, stated
that he spoke to Mr Alexandra, who confirmed that he received a
telephone call
from the Provincial Chair, but that he denies the
contents thereof as alleged on behalf of the applicant. Mr Alexandra
informed
the third respondent that he has been engaged in the process
that led to the enlistment of the appointed respondents by Mr Pitso
Mokoena, until the decision was made on the Friday of that week to
halt the process. Mr Alexandra was surprised the next Monday
when the
enlistment was proceeded with. He never expressed to the Provincial
Chair that he was surprised by the appointments as
alleged. A
confirmatory affidavit of Mr Alexander was attached to the answering
affidavit as annexure "AAS".
The
replying affidavit of the applicant on the issue of authority:
[20] In
paragraphs 9 to 12 of the replying affidavit Mr Mahlatsi, the
Provincial
Secretary of the applicant, dealt with the applicant's
locus standi.
[21] Although
incorrectly numbered, it appears that the Provincial Secretary of the
applicant meant to deal with the applicant's alleged lack of
authority as contained in paragraphs 58 to 61 of the answering
affidavit,
in paragraph 26 of the replying affidavit. In the said
paragraph 26 of the replying affidavit the Mr Mahlatsi responded as
follows
on behalf of the applicant:
"26.1 The
application was launched by the applicant and not by me.
26.2 I am advised that
there are certain procedures which the respondents may follow if the
mandate of the applicant's attorney
of record to lodge these
proceedings is challenged."
Rule
7-notice:
[22] On
28 October 2022, after the filing of the founding affidavit and prior
to
the filing of the answering affidavit, the first and third
respondents filed a notice in terms of Rule 7(1), which reads as
follows:
"Kindly take notice
that the first and third respondents dispute the authority of Kramer
Weihmann Attorneys to act on behalf
of the applicant.
Take notice further that
Kramer Weihmann Attorneys may no longer act for the applicant until
such time as the attorneys have satisfied
the Court that they are so
authorised."
[23] On
1 November 2022, after the filing of the answering affidavit and
prior to
the filing of the replying affidavit, an e-mail was sent
from Kramer Weihmann Attorneys to the attorney of record of the first
and third respondents. The "subject" of the e-mail refers
to the parties in the application
in casu
and also records the
case number. The contents thereof read as follows:
"Dear Sir
We refer to the
abovementioned matter and your clients' notice in terms of Rule 7(1)
of the Uniform Rules of Court.
We append hereto the
authorisation letter from our client, in terms of which our mandate
is confirmed.
Please confirm if same is
in order, in the alternative, please contact our offices if any
further information is required.
Kind regards.
KRAMER WEIHMANN
ATTORNEYS"
[24] I
will in due course deal with the letter which was attached to the
aforesaid
reply to the Rule 7(1)-notice.
Applicable
legal principles and consideration of the arguments:
[25] Mr
Grobler appeared on behalf of the applicant and Mr Masihleho appeared
on
behalf of the first and third respondents. Both of them fully
addressed me on all the points
in limine
and the merits of the
application, but for present purposes I will deal with their
arguments on the issue of authority.
[26] In
my view and based on the arguments on behalf of the respective
parties, it
is not in dispute that it was the intention that the
national entity, SAMWU, and not the Free State provincial structure
of SAMWU,
was intended to be the applicant and has indeed been cited
as such.
[27] I
was not placed in possession of the reply by the applicant's
attorneys of
record in response to the first and third respondent's'
notice in terms of Rule 7 prior to the hearing of the application. I,
consequently,
at the end of Mr Grobler's address, enquired from him
whether such a reply had in fact been filed by the applicant's
attorneys
of record. Mr Grobler indicated that he enquired from his
attorney regarding the filing of such reply immediately before the
commencement
of the hearing. The e-mail of 1 November 2022 to which I
referred earlier, with the letter attached thereto, were consequently
handed to me at that stage of the hearing. I enquired from Mr
Masihleho whether his instructing attorney had received same, which
he confirmed.
[28] In
his argument, Mr Masihleho pointed out that considering that the
deponent
to the founding affidavit is the Provincial Secretary of the
applicant, it is evident that although the national entity, SAMWU,
was cited as the applicant, the proceedings were actually launched by
the provincial structure of the national entity.
[29] Mr
Masihleho referred to the fact that the first and third respondents
specifically
and pertinently challenged the authority of the
Provincial Secretary of the applicant to have launched the
proceedings in the name
of the applicant, as stated in paragraph 60
of the answering affidavit quoted herein earlier. Despite this direct
and pertinent
challenge of the Provincial Secretary's authority in
terms of the constitution of the applicant to have launched the
proceedings
in the name of the applicant, the Provincial Secretary
did not respond in the replying affidavit by attaching and/or
referring
to the relevant clauses of the constitution of the
applicant in support of the Provincial Secretary's alleged authority.
Mr Masihleho
consequently submitted that in the absence of any such
authorisation in terms of the constitution of the applicant, it
cannot be
found that the Provincial Secretary had the necessary
authority to have instituted the application on behalf of the
applicant against
the respondents.
[30] I
now return to the letters of demand which were sent on behalf of the
applicant,
to which I referred earlier. The following are evident
from those letters:
1. The
initial letter of demand which, according to the applicant,
"the
applicant directed
..
.to the first respondent",
attached
to the founding affidavit as annexure "FA2", was written on
a letterhead which reads:
"South African
Municipal Workers' Union
Free State Province"
On the same letterhead
the address of the SAMWU Free State Provincial Office, being an
address in Bloemfontein, is reflected, as
well as Bloemfontein
landline telephone numbers. At the bottom of the letterhead the names
of the
Provincial
Chairperson, the Deputy
Provincial
Chairperson, the
Provincial
Treasurer, the
Provincial
Secretary and the Deputy
Provincial
Secretary appear. (My
emphasis) There is consequently no reference to or indication of the
national structure of SAMWU on the said
letterhead. Despite this, the
first sentence of the letter reads as follows:
"The above-mentioned
recognized national union (SAMWU) is hereby gravely aggrieved about
the continues unlawful, illegal and
disrespect to hard earned
negotiated approved policies, collective agreements and laws of our
country. We have learned and observed
today morning with great
disappointment about the unlawful recruitment of employees outside
the provisions of the Recruitment,
Selection and Appointment Policy
of MAP Water."
2. Without
dealing with the further contents of the letter, it is to be noted
that the letter,
although not signed, was concluded with the
following:
"SAMWU FREE STATE
PROVINCIAL CHAIRPERSON
MAP WATER CONSTITUANCY
SHOPSTEWART
TD MOKOENA"
3. In
the subsequent letter of demand addressed to,
inter alia,
the
first and third respondents, by the applicant's attorneys of record,
dated 14 October 2022, the following was stated in paragraph
1
thereof, which seems to be a reference to the national structure of
SAMWU:
"We refer to the
abovementioned matter and confirm that we have received instructions
from the South African Municipal Workers'
Union (SAMWU) to write this
letter on their behalf."
The
Rule 7-reply:
[31] In
the reply by the applicant's attorneys of record to the Rule 7(1)
notice, it was
stated in the relevant e-mail, which I have already
referred to earlier, that
"[W]e
append
hereto
the
authorisation letter
from
our client
in
terms
of
which
our
mandate
is
confirmed'.
[32] When
the letter itself is considered, it once again reflects the same
letterhead described
above of the
"South African
Municipal Workers' Union, Free State Province",
the
provincial office address, Bloemfontein landline telephone numbers,
with the names of the Provincial Office Bearers reflected
at the
bottom of the said letterhead.
[33] The
said letter is dated 1 November 2022 (after the application had
already been launched),
it is addressed to the applicant's attorney
of record and the contents thereof read as follows:
"RE:
Authorisation
letter:
SAMWU
obo
Members/Maluti
a
Phofung
Water (Soc) Ltd
The South African
Municipal Workers' Union,
Free State Province
, hereby appoints
you to pursue the matter of SAMWU obo Members and Maluti a Phofung
Water (Soc) Limited on unlawful appointments
of general workers. (My
emphasis)
You are appointed to
review and set aside the said unlawful appointment/recruitment of the
eleven (11) General Workers outside the
recruitment policy of the
entity.
Hope you find the above
in order.
Yours
[Signed]
Tiisetso Mahlatsi
Provincial Secretary"
[34] The
aforesaid letter was consequently signed by the very same person who
is the deponent
to the founding and replying affidavits.
[35] From
the aforesaid it is evident that the Free State provincial structure
of the applicant
purportedly
"authorised'
the
institution of the application on behalf of the national entity,
SAMWU, but the Provincial Secretary completely failed to indicate
any
basis upon which it can be accepted that the Provincial Secretary
and/or the provincial structure of the applicant had the
authority to
and/or had been duly authorised to have instructed Kramer Weihmann
Attorneys to act on behalf of the applicant and/or
to institute the
application on behalf of the applicant. The same lack of authority is
applicable with regard to the Provincial
Secretary’s and/or the
provincial structures authority to act on behalf of the applicant
and/or to have instituted the application
on behalf of the applicant.
[36] In
Eskom
V Soweto
City
Council
1992 (2) SA 703
(W) at 705 E - H
the following applicable principles were enunciated:
"The care displayed
in the past about proof of authority was rational. It was inspired by
the fear that a person may deny that
he was party to litigation
carried on in his name. His signature to the process, or when that
does not eventuate, formal proof
of authority would avoid undue risk
to the opposite party, to the administration of justice and sometimes
even to his own attorney.
(Compare
Vi/joen v Federated Trust Ltd
1971 (1) SA 750
(0)
at 7520-F and the authorities there
quoted.)
The developed view,
adopted in Court Rule 7(1), is that the risk is adequately managed on
a different level. If the attorney is
authorised to bring the
application on behalf of the applicant, the application necessarily
is that of the applicant. There is
no need that any other person,
whether he be a witness or someone who becomes involved especially in
the context of authority,
should additionally be authorised. It is
therefore sufficient to know whether or not the attorney acts with
authority.
As to when and how the
attorney's authority should be proved, the Rule maker made a
policy decision. Perhaps because the risk
is minimal that an attorney
will act for a person without authority to do so, proof is dispensed
with except only if the other
party challenges the authority. See
Rule 7(1). Courts should honour that approach. Properly applied, that
should lead to the elimination
of the many pages of resolutions,
delegations and substitutions still attached to applications by some
litigants, especially certain
financial institutions."
See also
Ganes
v
Telecom
Namibia
Limited
2004 (3) SA 615
(SCA) at para [19].
[37] In
the circumstances I am not satisfied that Kramer Weihmann Attorneys
are properly
authorised to act on behalf of the applicant and/or to
have instituted and prosecuted the application on behalf of the
applicant.
I am
mutatis mutandis
not satisfied that the
Provincial Secretary and/or the Free State provincial structure of
the applicant is properly authorised to
act on behalf of the
applicant and/or to have instituted and prosecuted the application on
behalf of the applicant.
[38] Although
I am mindful of the fact that Rule 7(1) enables the court to postpone
the
application in order to enable the said attorneys to satisfy the
court that they are properly authorised to act, I do not consider
such an order appropriate in the circumstances. Both the applicant's
attorneys and the applicant and/or the Free State provincial
structure of the applicant has been given ample opportunity to have
done so, which they failed to do.
[39] In
the circumstances the application is to be struck from the roll.
[40] I
consequently deem it unnecessary to deal with the other points raised
by the first
and third respondents and/or the merits of the
application.
Costs:
[41] There
is no reason why costs should not follow the outcome of the
application, which
costs are to include the reserved costs of 10
October 2022.
Order:
1.
The application is struck from the roll.
2.
The applicant is ordered to pay the costs of the application,
including the costs of 10 October 2022.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv
S Grabler SC
Instructed
by:
Kramer
Weihmann Attorneys
BLOEMFONTEIN
On
behalf of the first and
third
respondents:
Adv
P.T. Masihlehlo
Instructed
by:
Phatshoane
Henney Inc.
BLOEMFONTEIN
On
behalf of the fourth
respondent
(Notice to Abide):
Mr
GP Chauke
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN