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[2010] ZASCA 144
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Manana v King Sabata Dalindyebo Municipality ([2011] 3 BLLR 215 (SCA) ; (2011) 32 ILJ 581 (SCA); [2011] 3 All SA 140 (SCA)) [2010] ZASCA 144; 345/09 (25 November 2010)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 345/09
No precedential significance
In the matter between:
MPUTUMI CAMARON MANANA
................................................
Appellant
and
KING SABATA DALINDYEBO
MUNICIPALITY
..................
Respondent
Neutral citation:
Manana
v King Sabata Dalindyebo Municipality
(345/09)
[2010] ZASCA 144
(25 NOVEMBER 2010)
Coram:
MPATI P, NUGENT and
MHLANTLA JJA
Heard:
10 NOVEMBER 2010
Delivered: 25 NOVEMBER 2010
Summary:
Contract of
employment – resolution of the municipal council – must
be adhered to until rescinded or set aside.
_______________________________________________________________________
ORDER
_______________________________________________________________________
On appeal from: Eastern Cape High
Court, Mthatha (Pakade J sitting as court of first instance).
The appeal is upheld with costs
that include the costs of the earlier hearing of this appeal. The
order of the court below is set
aside and substituted by the
following:
‘
1. The
respondent is ordered to account to the applicant for such money as
might be due to him as salary and back pay in consequence
of his
appointment to the position of Manager: Legal Services.
2. The respondent is ordered to
pay the amount that is due forthwith.
3. Subject to any events that
might have occurred since the appointment that alter the legal
position, the respondents are ordered
to effect the necessary
adjustments to the applicant’s salary in consequence of the
applicant’s appointment to the
position of Manager: Legal
Services.
4. The respondent is ordered to
pay the costs of this application.’
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
NUGENT JA (MPATI P and MHLANTLA
JA concurring)
[1] This
appeal arises from an application that was brought by Mr Manana (the
appellant) against the King Sabata Dalindyebo Municipality,
(the
respondent) in the Eastern Cape High Court at Mthatha for the payment
of remuneration that was said to be due to him by the
municipality
and for related relief. After hearing full argument on all the issues
the court below (Pakade J) held that it had
no jurisdiction in the
matter – relying in that regard upon the decision in
Chirwa
v Transnet Ltd
1
–
and
dismissed the claim. In the course of his judgment the learned judge
remarked that Mr Manana was ‘strong on the merits
of the
application’, from which I think it can be inferred that, but
for his finding on jurisdiction, he would have upheld
the
application. Mr Manana appealed to this court with the leave of the
court below.
[2] The court
below cannot be faulted for having found that it had no jurisdiction
in view of the decision in
Chirwa
that was
binding on it at the time. But that decision was subsequently
clarified in
Gcaba
v Minister for Safety and Security
,
2
from which it
became apparent that the court indeed had jurisdiction to consider
the claim. Meanwhile, the appeal had been set down
to be heard on 6
May 2010. On 6 January 2010 the municipality’s local attorney
wrote to the registrar curtly as follows:
‘
We
have been instructed by our correspondents to inform you that the
[municipality] does not intend opposing the appeal and will
therefor
not file Heads of Argument.’
Some two weeks later the attorney
wrote to the registrar as follows:
‘
With
reference to the above as well as our letter dated 6 January 2010
when we advised that our client does not intend opposing
the appeal,
we however wish to point out that we still require notification of
the date of hearing of the appeal so as to enable
us to monitor the
process on behalf of client and correspondents.’
[3] It is trite that an appeal
lies against the order that is made by a court, and not merely
against the reasons for its order.
In the absence of opposition to
the appeal – and the absence of any legal representative for
the municipality when the appeal
was heard – this court set
aside the order of the court below and substituted the order that was
sought in the court below,
in accordance with its ordinary powers on
appeal. As it turns out, the municipality intended to concede only
the jurisdictional
objection that had been taken in the court below.
It was under the impression that once the order was set aside the
matter would
have been remitted to the court below – a
fruitless exercise bearing in mind that all the issues had been fully
traversed
in that court and any finding against the municipality
would undoubtedly have returned to this court.
[4] The
approach that was taken by the municipality warrants two
observations. Having concluded, correctly, that it could not defend
the jurisdictional finding of the court below, the municipality could
simply have abandoned the order in its favour, as it was
capable of
doing,
3
even if only
on terms as to the disposal of the matter that the parties might have
agreed. Instead the municipality put Mr Manana
to the trouble and
expense of having to brief counsel and to pursue the appeal so as to
have the order set aside, and put this
court to the inconvenience of
convening in order to do so. Moreover, having adopted that course,
and knowing that the appeal would
have to proceed, the municipality
then failed to ensure that a representative was present when the
appeal was heard, if only to
note the proceedings in accordance with
conventional courtesy. Had that been done the problem would also have
been avoided.
[5] Nonetheless, the parties are
at one that in the circumstances I have outlined the order was
erroneously made in the absence
of the municipality and it may and
should be recalled. We order accordingly. They are also agreed that
this court may and should
dispose of the matter on its merits.
[6] The material facts are
straightforward. The appellant was formerly employed by the Umtata
Transitional Local Council as a legal
advisor. In about 2000 the
Umtata Transitional Local Council merged with the Mqanduli
Transitional Local Council to form the municipality
with which we are
now concerned. Certain disputes arose between the appellant and the
municipality concerning his position and
I deal with those below to
the extent that they are material. For the moment it is sufficient to
say that they culminated in a
resolution being adopted by the
municipal council on 3 November 2006 in the following terms:
‘
(a)
That, with effect from 10 August 2006, and in line with the ruling of
the presiding officer of the grievance, Mr Manana is placed
on the
position of the Manager Legal Services, which position is on grade 3;
(b) …
(c) That, taking
into account the ruling of the presiding officer on Mr Manana’s
grievance, and the fact that he has been
caused to act for a lengthy
period of time and thereby deprived of the benefits attached to the
post, that he be back paid accordingly,
with effect from August
2006.’
[7] On 21 December 2006 the
appellant was notified of the resolution in a letter addressed to him
by the Acting Director: Corporate
Services. The following day Mr
Manana signed the foot of the letter in acknowledgment of his
acceptance of the appointment.
[8] That notwithstanding, no
adjustment was made to Mr Manana’s salary. On 13 February 2007
he wrote to the Acting Director:
Corporate Services, drawing that to
his attention, and requesting that the matter be rectified. He was
advised in reply the following
day that the matter was receiving the
attention of the Municipal Manager.
[9] By 20 February 2007 nothing
further had happened and the appellant’s attorney wrote to the
Municipal Manager demanding
that steps be taken immediately to
account to Mr Manana for salary adjustments and benefits in
consequence of his appointment.
The Municipal Manager replied as
follows:
‘
Please
be advised that the purported appointment of your client is currently
the subject of review which my office is facilitating
with the
Council of the Municipality as part of the intervention by the MEC
for Housing, Local Government and Traditional Affairs
to investigate
acts of maladministration and irregularities in the Municipality.
The review is aimed
at re-looking at all acts and omissions which would appear to have
elements of maladministration or irregularities.
Your client’s
purported appointment unfortunately falls into such category.
Your client has been
advised of the above process and I appeal to you to advise your
client to kindly await the outcome of the review
process which will
be communicated to him as soon as a decision has been taken.’
[10] Mr Manana was not willing to
wait. On 20 March 2007 the present proceedings were launched, in
which he claimed, essentially,
payment of moneys that had become due
to him in consequence of his appointment, and an order directing the
municipality to make
the appropriate adjustments to his salary.
[11] Meanwhile, the relevant
member of the executive council of the province had appointed Ms
Zitumane as ‘caretaker municipal
manager’ of the
municipality. Her brief was to investigate various irregularities in
its affairs that were alleged to have
occurred. Precisely what her
position entailed has not been elaborated upon but there is no
suggestion that her powers were any
greater than those of a municipal
manager duly appointed under the provisions of the
Local Government:
Municipal Systems Act 32 of 2000
.
[12] The
answering affidavit opposing the application was deposed to by Ms
Zitumane. At first sight it seems curious that the municipality
should be contending that effect should not be given to its own
resolution, which had not been rescinded at the time the answering
affidavit was deposed to.
4
It seems to me
that the curiosity arises from a misconception as to the nature of a
municipality – which raises the question
whether the opposition
to the application was authorised, a matter that I return to
presently. The misconception also pervades
most of the argument that
was presented before us and it is as well to dispel it at the outset.
For the purposes of this judgment
I will assume that the municipality
is properly before us in opposition to this appeal.
[13] The
constitutional structure of government is separated into three
spheres: the national sphere, the provincial sphere, and
the local
sphere.
5
The local
sphere of government consists of ‘municipalities’, which
must be established for the whole of the territory
of the Republic.
6
The executive
authority of a municipality does not vest in its municipal manager
(or any other of its employees). Its executive
authority
7
is
constitutionally vested in its municipal council.
8
[14] The Act
provides the framework within which a municipality must function. As
is to be expected, the Act is replete with provisions
recognising
that executive authority vests in the council and in nobody else.
Indeed, ordinary legislation is not constitutionally
capable of
divesting a municipal council of its executive authority – or
any part of it – and the construction of a
statute that would
produce that result must be avoided if it is possible to do so.
9
[15] The first submission that
was made on behalf of the municipality was that the resolution to
which I have referred is not relevant
because the power to appoint
employees vests in the municipal manager and not in the municipal
council. For that submission counsel
relied on s 55(1)(a)-(e) of
the Act – in particular subsection (e). Confining myself to the
relevant part of that subsection
it reads as follows:
‘
As
head of administration the municipal manager of a municipality is,
subject to the policy directions of the municipal council,
responsible and accountable for –
(e) the appointment
of staff …’
[16] A
municipal council is not capable in practice of exercising its
executive authority by running the day-to-day affairs of the
municipality and it employs staff to do that on its behalf. In the
past it was common for municipal councils to confer the appropriate
authority upon their staff by delegation of all or some of its
executive powers. Such a delegation of power does not ordinarily
divest the delegator of the power to perform the particular function
itself. As the authors of
De
Smith’s Judicial Review
express it:
10
‘
[I]t
has sometimes been stated that delegation implies a denudation of
authority…. This cannot be accepted as an accurate
general
proposition. On the contrary, the general rule is that an authority
which delegates its powers does not divest itself of
them ….’
[17] In my
view s 55(1) is no more than a statutory means of conferring
such power upon municipal managers to attend to the
affairs of the
municipality on behalf of the municipal council. There is no basis
for construing the section as simultaneously
divesting the municipal
council of any of its executive powers. Indeed, as I have already
pointed out, the Constitution vests all
executive authority –
which includes the authority to appoint staff – in the
municipal council and legislation is not
capable of lawfully
divesting it of that power. To the extent that there might be any
ambiguity in the statute in that respect
it must be construed to
avoid that result.
11
[18] On a subsidiary, but
related, point, I said earlier that the resolution of the municipal
council was communicated to Mr Manana
in a letter addressed to him by
the Acting Director: Corporate Services, which he signed in
acceptance. It was submitted –
based once more on the
subsection I have referred to – that only the municipal manager
(and not the Acting Director: Corporate
Services) had authority to
conclude an employment contract. There are at least two answers to
that submission. First, it was not
the Acting Director: Corporate
Services who purported to make the appointment. As appears from the
terms of the resolution, it
was the municipal council itself that did
so. The Acting Director: Corporate Services did no more than to
execute the resolution
administratively. But even if the Acting
Director: Corporate Services had purported to make the appointment,
on the authority conferred
by the resolution, there is nothing to
suggest that he did not have delegated authority to do so. Municipal
managers do not singlehandedly
perform all the functions referred to
in s 55(1). They ordinarily delegate at least some of those
functions to subordinates
– whether expressly or by implication
– and there is no suggestion in the answering affidavit that
that has not occurred
in this case. Indeed, it is not even a ground
upon which the application was resisted in the answering affidavit.
[19] The second submission sought
to impugn the resolution itself. In her affidavit Ms Zitumane alleged
that the resolution was
brought into being irregularly and was in
conflict with the municipality’s employment policy. I need not
deal in detail with
the alleged irregularity. It is sufficient to say
that she alleges that the ‘ruling’ referred to in the
resolution
– which purported to ‘rule’ that Mr
Manana be appointed to the post – was ‘concocted’
to induce
the municipal council to make the appointment. (I need to
make it clear that there is no suggestion that the resolution was
adopted
contrary to the proper procedures for the adoption of
resolutions and was thus formally defective.) Ms Zitumane’s
view that
this resolution, and other resolutions that had been
adopted, were irregular, caused her to submit a report to the
municipal council
requesting it to rescind the various resolutions,
but that had not occurred at the time the answering affidavit was
deposed to.
[20] Against that background it
was submitted that the resolution was invalid and thus not binding
upon the municipality. I am not
at all sure that the allegations
establish that the resolution was irregular but I will assume
nonetheless that it is indeed liable
to be impugned.
[21] No
authority was advanced for the submission that a duly adopted
resolution of a local authority might be ignored by its officials
if
they have a belief that it is invalid, even if that belief is
well-founded. Indeed, the contrary was held in the early case
of
Grace
v McCulloch.
12
In that case a
resolution was adopted by a municipal council in contravention of its
standing orders. After it was adopted the chairman
of the council
ruled the resolution to be out of order and instructed the town clerk
not to act on it. Upholding a claim by members
of the council to set
aside that ruling and instruction Curlewis J said the following:
13
‘
[W]hen
once the council has taken a resolution it is not competent for the
chairman, any more than for any other councillor, to
declare it
invalid and of no effect; nor is it competent for him to take upon
himself the responsibility of instructing the town
clerk not to act
on a resolution passed by a majority of the council. If the chairman
or any councillor is dissatisfied with a
resolution, his course is to
give notice of motion to rescind or reconsider the resolution as
provided by the standing orders.
That is one course. If the
resolution is clearly wrong or illegal another course is to come to
Court, and ask to have such resolution
declared illegal. But I do not
think the power to declare resolutions invalid lies with the
chairman.’
[22] Although
that case was decided a considerable time ago we were referred to no
subsequent authority that conflicts with it and
I know of none. And
although this case must be decided under a different constitutional
dispensation I can see no new principle
that drives one in another
direction. On the contrary, it seems to me that it would be conducive
to disorderly public administration
if officials were entitled to
choose between executing or not executing a duly adopted resolution
of the council depending upon
their belief as to its validity –
whether or not the belief is well-founded. In the absence of
authority to that effect,
or a principled explanation for why that
should be so, neither of which is before us, I think the submission
must be rejected.
A municipal council acts through its resolutions.
No doubt a municipal council is entitled to rescind or alter its
resolutions.
And no doubt an interested party is entitled to
challenge its validity on review. But once a resolution is adopted in
my view its
officials are bound to execute it, whatever view they
might have on the merit of the resolution, in law or otherwise, until
such
time as it is either rescinded or set aside on review.
14
[23] The final
submission is reminiscent of a debate that I thought had run its
course once
Gcaba
was decided.
It was submitted that the facts of this case ground a claim for
relief under the Labour Relations Act. In those circumstances,
so I
understood the submission, it cannot be a claim that is good in law
in the high courts. Counsel said that the decisions of
this court in
Makhanya
v University of Zululand
15
and
South
African
Maritime
Safety Authority v McKenzie
16
support that
submission. They do no such thing. The evidence in this case
establishes the existence of a contract of employment
between the
municipality and Mr Manana and he wishes to enforce the contract. It
is conceded that the high court had jurisdiction
to do so, which it
clearly does. That he might have been entitled to other relief under
the remedies provided for under the Labour
Relations Act does not
somehow extinguish his contractual rights.
[24] In my view no proper grounds
were advanced for resisting the claim and the appeal must be upheld.
[25] There remains the question
of costs. I have drawn attention to the curiosity of the municipality
purporting to oppose the execution
of its own resolution while
simultaneously leaving it intact. The curiosity arises because Ms
Zitumane purports to be speaking
for the municipality when it is not
clear that the full municipal council is aware of the fact. There is
no resolution of the municipal
council authorising the opposition. Ms
Zitumane relies instead upon a general delegation by the municipal
council to the municipal
manager to institute and defend legal
proceedings. It is questionable whether that delegation is to be
construed as authorising
the municipal manager to challenge the
validity of a resolution of the municipal council itself but we need
not decide that question.
She has purported to oppose the proceedings
in the name of the municipality and I think the municipality must pay
the costs. It
is open to the municipal council to consider whether
she was authorised to do so and to act accordingly. I need to add
that there
can be no doubt that she acted at all times in good faith,
even if in law she might have been mistaken, and I make no suggestion
of any impropriety on her part.
[26] I need also to make it clear
that the order that I intend to make does not purport to declare the
position at any time after
the application was brought and does not
take account of subsequent events that might have altered the
position or might yet do
so.
[27] The appeal is upheld with
costs that include the costs of the earlier hearing of this appeal.
The order of the court below
is set aside and substituted by the
following:
‘
1. The
respondent is ordered to account to the applicant for such money as
might be due to him as salary and back pay in consequence
of his
appointment to the position of Manager: Legal Services.
2. The respondent is ordered to
pay the amount that is due forthwith.
3. Subject to any events that
might have occurred since the appointment that alter the legal
position, the respondents are ordered
to effect the necessary
adjustments to the applicant’s salary in consequence of the
applicant’s appointment to the
position of Manager: Legal
Services.
4. The respondent is ordered to
pay the costs of this application.’
_________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For appellant: Z Z Matebese
Instructed by:
Mlindazwe & Associates,
Mthatha
Bokwa Attorneys, Bloemfontein
For respondent: J G Grogan
Instructed by:
Joubert Galpin Searle Attorneys
c/o J F Heunis & Associates, Mthatha
McIntyre & Van der Post,
Bloemfontein
1
[2007] ZACC 23
;
2008
(4) SA 367
(CC).
2
2010
(1) SA 238
(CC). See, too,
Makhanya v University of Zululand
2010 (1) SA 62
(SCA).
3
Rule
41(2) of the Uniform Rules.
4
We
were told from the bar that it has still not been rescinded.
5
Section
40(1) of the Constitution of the Republic of South Africa, 1996.
6
Section
151(1) of the Constitution.
7
Also
its legislative authority, but that is not now relevant.
8
Section
151 (2) of the Constitution.
9
Per
Langa CJ in
Investigating Directorate: Serious Economic Offences
v Hyundai Motor Distributors (Pty) Ltd; In re Hyundai Motor
Distributors
(Pty) Ltd v Smit
[2000] ZACC 12
;
2001 (1) SA 545
(CC) paras 21-26.
10
6
ed by The Rt Hon The Lord Woolf, Jeffrey Jowell QC, Andrew Le Sueur,
assisted by Catherine M. Donnelly para 5-146. See too,
Administrator, Cape v Associated Buildings Ltd
1957 (2) SA
317
(A) at 323G-H:
SA Freight Consolidators (Pty) Ltd v Chairman,
National Transport Commission
1987 (4) SA 155
(W), relying on
the extensive treatment of the subject by Marinus Wiechers:
Administrative Law
pp 51-56.
11
See
Langa CJ in
Investigating Directorate: Serious Offences,
above,
paras 21-26.
12
1908
TH 165.
13
At
p. 175.
14
Cf
Oudekraal Estates (Pty) Ltd v City of Cape Town
2004 (6) SA
222
(SCA), and numerous cases that have followed it.
15
Above.
16
2010
(3) SA 601
(SCA).