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2023
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[2023] ZAFSHC 284
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Matjhabeng Local Municipality v MC Security and Investigations and Others (962/2023) [2023] ZAFSHC 284 (24 July 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
962
/2023
In
the appeal of:
MATJHABENG
LOCAL MUNICIPALITY
and
MC
SECURITY AND INVESTIGATIONS
THE
SHERIFF: WELKOM
APPLICANT
FIRST
RESPONDENT
SECOND
RESPONDENT
KRUGER
VENTER MAREE INC
ABSA
BANK: WELKOM
THIRD
RESPONDENT
FOURTH
RESPONDENT
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
14
JULY2023
DELIVERED
ON:
24
JULY 2023
[1] On 5 July 2023
the applicant brought an urgent application on an
ex parte
basis against the respondents in their absence. The order was granted
in favour of the applicant. The First Respondent has now
enrolled
this matter for the reconsideration of the said order in terms of
Uniform Rule 6(12) (c). The applicant opposes the reconsideration.
The remaining respondents did not participate in these proceedings.
For convenience, the first respondent will be referred to simply
as
the respondent.
[2] In the
ex
parte
application the court granted a rule nisi calling upon the
2
nd
and/or 3
rd
and /or 4
th
respondents to show cause on 27 July 2023 why they should not be
interdicted from paying an amount of twenty-three million seven
hundred and thirty-two thousand, one hundred and thirty-seven rand
and eleven cents, (R23 732 137.11) held by the 2
nd
and/or 3
rd
and /or 4
th
respondent on behalf of
the 1
st
respondent under writ of execution dated 26 April
2023, pending the final adjudication of the final order.
[3] The
reconsideration is based squarely on the purported lack of authority
of the Municipal Manager to institute the
ex parte
application. Because the attack on the application is solely based on
this narrow issue, it is unnecessary to set out the whole
factual
matrix surrounding this application.
[4]
The applicant and the respondent are in agreement that the Municipal
Manager’s authority to initiate and launch
these types of
proceedings is derived from the Municipal Systems Act, 32 of 2000
(the Systems Act). Further according to
the applicant, the
authority of the municipal manager is a delegated power vested in him
by virtue of the Systems of Delegations
which was resolved by the
Municipal Council at a meeting held on 26 September 2016. It is
submitted that the municipal manager
is a
delegated
body
[1]
as defined in the Systems of Delegation. It is lastly submitted
that the Council, as the delegating authority has thus delegated
the
functions to the municipal manager as head of administration and
accountability.
[5]
Section 59 of the Systems Act provides as follows:
59
Delegations
(1) A municipal council
must develop a system of delegation that will maximise administrative
and operational efficiency and provide
for adequate checks and
balances, and, in accordance with that system, may-
(a)
Delegate
appropriate powers, excluding a power mentioned in section 160(2) of
the Constitution
[2]
and the
power to set tariffs, to decide to enter into a service delivery
agreement in terms of section 76(b) and to approve or
amend the
Municipality’s integrated development plan, to any of the
Municipality’s other political structures, political
office
bearers, councillor, or staff members;
(b) Instruct any such
political structure, political office bearer, councillor, or staff
member to perform any of the Municipality’s
duties; and
(c) Withdraw
any delegation or instruction.
[6]
The reading of section 59 indicates that the said provision is
peremptory. I do not understand the submissions of the
applicant to
hold otherwise. The essence of the case of the applicant is that the
Municipal Manager was properly authorised to
institute these
proceedings by virtue of the delegated powers as set out in section
59. It is necessary to refer to the letter
dated 13 July 2023
attached
to the applicant’s replying affidavit
.
This letter purports to evidence the authority conferred to the
municipal manager to bring these proceedings and similar ones
in
accordance with the Systems of Delegations. The relevant part reads
as follows:
‘
TO
WHOM IT MAY CONCERN
EXTRACT
FROM THE COUNCIL MINUTES: 26 September 2016 (Adoption of Delegation
of Powers)
COUNCIL
RESOLVED: (06 SEPTEMBER 2016)
1.
That Council ADOPTS the
Delegation of Powers for 2016-2021 term of Council.
2.
That a workshop BE CONDUCTED as a
matter of urgency to familiarize all Councillors on delegated powers.
3.
That the relevant provisions of
the new SPLUMA Act should BE INCOROPRATED in the delegation of
powers.
4.
…
Signed:
Adv. LONWABO NGOQO
MUNICIPAL
MANAGER’
[7]
The above extract of the Council resolution clearly indicates that
the Delegation of Powers relied upon by the Applicant
was for the
period 2016 to 2021. Section 59(4) of the Systems Act provides that
any delegation or sub-delegation to a staff member
of a power
conferred on a municipal manager must be approved by the municipal
council in accordance with the system of delegation
referred to in
subsection 59(1). The Applicant has not filed any further Council
resolution approving or delegating any powers
referred to in the
Delegation of Powers after the year 2021. This ex parte application
was launched in 2023 after the term of the
resolution of the Council
referred to above had ran its course. In this regard, there is no
proof before me that the Municipal
Manager had the necessary
authority to bring these proceedings as envisaged in s59.
[8]
The resolution of the Council of the delegation in terms of
the Delegated Systems of
Powers in this case
was clearly not intended to be indefinite. Such delegation was
clearly tied to the term of the Council. Section
159(1) of the
Constitution provides that the term of office of the Municipal
Council may not exceed five years. The resolution
was clearly in line
with the Constitution. The next Council, post 2021 was at liberty to
resolve and delegate some of its powers
in line with s59. There is no
evidence before me indicating that such was done.
[9]
I am of the considered view that, in the absence of a Council
resolution or delegated powers, it cannot be said
that the Municipal
Manager was properly authorised to institute this application. It is
unnecessary in my view to deal with the
arguments raised by applicant
with regard to the purported authorisation emanating from the
Delegated Systems of powers in view
of the finding I made that there
was non-compliance with section 59 of the Systems Act. The
Delegated Systems of powers relied
upon by the applicant does not
assist it as its period has expired. The order granted on an
ex
parte
basis on 5 July stands therefore to be reconsidered.
[10]
I now turn to the issue of costs. It appears that the Applicant
launched an application in terms of Uniform Rule 45A
in this court
under the same case number. In that application the respondent
challenged the Municipal Manager’s
[3]
authority to act for the applicant as far back as 30 May 2023. The
applicant responded to the challenge by filing the Delegated
Powers
relied upon in this case. At the time these current proceedings were
instituted, the Rule 45A proceedings had not been concluded.
[11]
Rule 7 provides, inter alia, that where the authority of a person is
challenged, such a person may no longer act unless
he satisfies the
court that he is authorised to act. The applicant was aware of this
challenge. In spite of that awareness, it
still chose to bring this
application on an
ex parte
basis in the absence of the
respondents relying on the disputed authority. In view of the fact
that the authority was challenged
by filing Rule 7 notice, it was
incumbent on the applicant to have dealt with that issue raised in
the Rule 45 application before
launching these proceedings. By
ignoring the challenge raised, the applicant caused respondent to
deal with what ought to have
been dealt with before initiating these
proceedings. This conduct must be deprecated and be met with an
appropriate punitive costs.
I accordingly make the following order:
ORDER
1.
The order of this Court granted on 5
JULY 2023 is hereby reconsidered and set aside.
2.
The Applicant is ordered to pay the
costs occasioned by the reconsideration on attorney and client scale.
P.
E. MOLITSOANE, J
On
behalf of the Applicant:
Adv.
LA Roux
Instructed
by
Kruger
Venter Attorneys
BLOEMFONTEIN
On
behalf of the Respondents:
Adv.
WJ Prinsloo
Instructed
by
Pieter
Skein Attorneys
BLOEMFONTEIN
[1]
Definition
:
‘delegated body’
in relation to the delegation of a power means the political
structure, political office-bearer or employee to whom a power has
been delegated in writing by the delegating authority.”
[2]
Section 160(2) of the Constitution provides as follows:
“
The
following functions may not be delegated by a Municipal Council:
a)
The passing of by-laws;
b)
the approval of budgets;
c)
the imposition of rates and other taxes, levies and duties; and
d)
the raising of loans.”
[3]
Adv. Ngoqo- a deponent in the Rule 45A application and this
application.