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[2019] ZAECMHC 32
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Mgwebi and Another v Alfred NZO District Municipality and Another (2213/2009) [2019] ZAECMHC 32 (26 June 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION,
MTHATHA)
Case
No: 2213/2009
In
the matter
between:
ZOLISWA
MGWEBI
1
st
Plaintiff
LUSANDA
MGWEBI
2
nd
Plaintiff
And
ALFRED
NZO DISTRICT MUNICIPALITY
1
st
Defendant
O.R.
TAMBO DISTRICT
MUNICIPALITY 2
nd
Defendant
JUDGMENT
BESHE
J:
INTRODUCTION
[1]
Plaintiffs in this matter allege
that the first defendant, alternatively the second defendant
is
liable for the loss / damages suffered by the plaintiffs as a result
of the negligence of first, alternatively second defendant’s
employee/s who failed to inform the Provident Fund of first
plaintiff’s husband’s death.
PARTIES
[2]
First plaintiff sues on her
behalf as well of on behalf of her minor children who were
born of
her marriage with
Mr Osman Mkuseli Mgwebi
(the deceased) who
passed away on the 20 September 1999. Second defendant is one of the
children born of the abovementioned union
who has since attained
maturity.
[3]
It is common cause that at the
time of his passing deceased was an employee of Wild Coast
Municipality Council. Wild Coast District Municipality or Council was
disestablished by Provincial Notice no. 83 dated 27 September
2000
that was issued by the MEC for Local Government, Province of the
Eastern Cape.
[4]
The defendants are cited on the
basis that they assumed portion or all the responsibilities
and / or
obligations of its predecessor, the Wild Coast Council.
[5]
Second defendant was joined and
plaintiff particulars of claim were amended accordingly,
as a
consequence of first defendant’s plea that:
“
Defendant
denies assuming all responsibilities and / or obligations of the Wild
Coast District Municipality. Defendant further pleads
that a much
larger portion of the responsibilities and / or obligations of the
Wild Coast District Municipality were in fact taken
over by the O.R.
Tambo District Municipality.”
EVIDENCE
[6]
First plaintiff and
Mr
Xelubakuyi Amos Mbotoli
testified in support of plaintiff’s
case. Both defendants closed their cases without calling any
witnesses or introducing
any evidence.
ISSUES
[7]
At the start of the proceedings
/ trial it was intimated to me that the only issues I was
required to
adjudicate upon were:
(i) Whether the deceased was employed
by any of the defendants, if so, which of the defendants; and
(ii) Whether deceased’s employer
had a duty to report the former’s death to the Provident Fund
to which deceased was
a member and, and if so, whether this duty was
carried out.
Depending on the answers to the two
questions determine where the liability for plaintiff’s loss /
damages lay.
PLEADINGS
[8]
Regarding the issues outlined
herein under, the defendants pleaded as follows:
First
defendant: That plaintiffs do not have a valid claim against it. That
it only came into being in December 2000 and could not
have been
deceased’s employer since 1997 when it was not yet in
existence. First defendant accordingly denied that it had
an
obligation to report deceased’s death as alleged.
[9]
Second defendant also pleaded that it only came into being during
2000 and that it
did not assume a portion and all responsibilities of
its predecessor. Second defendant denied that deceased was employed
by it
adding that he could not have been employed by two different
municipalities. Second defendant denied liability for plaintiffs’
claim.
PLAINTIFFS’
CASE
[10]
First plaintiff testified that she has been married to the deceased
since 1986. They had three
(3) children. Deceased passed away on the
20 September 1999. At the time of his demise he was employed by the
Wild Coast District
Council which was disestablished and replaced by
Alfred Nzo District Municipality with offices in Mt. Ayliff where
deceased was
working as Director: Civil Engineering. Following the
passing away of her husband on the 20 September 1999, on the 21
September
1999 she telephonically spoke to
Ms Nothemba Lebyane
also referred to as
Liphiyane
who was the Director for Human
Resources at the Wild Coast District Council. She informed her of the
passing of the deceased and
enquired from her whether there were any
monies that were due to her or that she could claim so as to foot the
bill for her husband’s
burial. She was told there were none.
Plaintiff testified that the deceased had once told her he was a
member of the SAMWU also
known as the South African Municipal Workers
Union. She however did not know the details of what this membership
entailed. On the
22 September 1999 she penned a letter to the
Municipal Manager,
Mr Mpumza
. To this end plaintiff referred
me to a copy of a letter addressed to
Mr Mpumza
dated 22
September 1999, the body of which recorded the following:
“
Dear Mr Mpumza (The Municipal
Manager)
From the Mgwebi family, wife and
children it is sad to advise and report to your Council and office
through you as the Municipal
Manager that Mr Osman Mkuseli Mgwebi who
was appointed by your Council as a Director Civil Engineering has
passed away on the 20
th
of September 1999 in Kokstad
Hospital.
According to the doctor’s report
the cause of death is the respiratory arrest, however the post-mortem
may advise otherwise.
You are also requested by the deceased’s
wife and family to advise if there is anything that your office can
dot to assist
with funeral arrangement.”
The letter is signed: Mrs Alicia
Zoliswa Mgwebi.
She testified the
Mr Mpumza
who
was in the company of some of his officials visited their home to
offer their condolences before the day of the funeral.
[11]
Years later she was approached by a person who
claimed to be a SAMWU representative,
Mr Sanqela
, who relayed
certain information to her relating to what should have been claimed
and by whom following the death of the deceased
who was a SAMWU
member. As a consequence of this, she visited the offices of the
Alfred Nzo Municipality in the company of
Mr Sanqela
where she
submitted certain documents. She was then paid a sum of R8000.00 by
SAMWU.
[12]
It was after having been contacted by
Mr
Sanqela
that she obtained further details pertaining to her late
husband’s membership of SAMWU. That SAMWU’s National
Provident
Fund was under Lekana and what benefits became due at the
occurrence of certain events. She embarked on an endeavour to claim
what
was due from the Provident Fund in question in her capacity as
the deceased’s surviving spouse and on behalf of their minor
children.
[13]
It is common cause that her claim was repudiated
by the Provident Fund in question on the basis that, it
was submitted
out of time.
[14]
The following clauses of the Fund Rules are
germane to the issues at hand:
4.1.1 A MEMBER who is in SERVICE shall
contribute to the FUND at the rate specified in the SCHEDULE. The
contributions shall be
deducted from his salary or wages at the end
of each month by his EMPLOYER and paid to the FUND.
6.2.2 The EMPLOYER shall notify the
FUND in writing about the death of a MEMBER within six months thereof
subject to the provisions
of Rule 6.2.3.
6.2.3 Should the EMPLOYER fail to
discharge its obligations as imposed by Rule 6.2.2 or negligently
cause a MEMBER of BENEFICIARY
to forfeit any benefit to which he is
entitled in terms of these rules, the EMPLOYER shall be fully liable
therefor.
[15]
The benefit statement from the SAMWU National
Provident Fund, as at 30 June 2006 records the following:
Deceased’s
member number, I December 1997 as the date he joined the fund, his
employer is listed as being Alfred Nzo (Wild
Coast) Municipality.
[16]
This information, coupled with plaintiff’s
evidence about the successor in title of the Wild Coast
District
Council as well as the Provincial Notice de-establishing certain
municipalities and establishing others in their place
as well as a
document sourced from the South African Municipalities website (page
85 of plaintiff’s bundle), it is clear
that Alfred Nzo District
Municipality is comprised of the following disestablished
municipalities:
Wild
Coast District Municipality, Mt Ayliff, Umzimkulu LC and TLC with its
offices in Mt Ayliff, where according to the first plaintiff
the Wild
Coast offices have always been
albeit
in makeshift
structures.
[17]
The Provincial Notice that disestablished certain
Municipalities including the Wild Coast District Council
was issued
as indicated by the MEC for Local Government who was acting in terms
of
Sections 12
and
14 of the Local Government
:
Municipal Structures Act, 1998 (Act 117 of 1998). Section 14
of
the said Act provides that:
“
14 Regulation of effects of
establishment of municipality on existing municipalities
(1)
(a)
A
municipality established in terms of section 12 in a particular area,
supersedes the existing municipality or municipalities to
the extent
that the existing municipality or municipalities fall within that
area.
(b)
The
superseding municipality becomes the successor in law of the existing
municipality subject to paragraph
(c)
.
(c)
Where
a district municipality and one or more local municipalities within
the area of the district municipality supersede the existing
municipality or municipalities in that area, the district and local
municipalities in that area become the successors in law of
the
existing municipality or municipalities depending on the specific
assets, liabilities, rights and obligations allocated to
the district
and local municipalities respectively in terms of the relevant
section 12 notice or notices.”
[18]
Apparent from what has been stated above is that:
the contention that because the defendants only came into
being in
2000 they could not have employed the deceased in December 1997, is
flawed and not supported by the evidence. This is
specifically so in
respect of first defendant as far as the deceased’s employment
is concerned. It is clear that first defendant
became the successor
in title of the Wild Coast District Council and consequently assumed
or inherited its assets, liabilities,
rights and obligations. So the
answer to the first leg of the enquiry or to the issue of who was the
employer of the deceased at
the time of his passing is that he was
employed by the first defendant.
[19]
The Provident Fund Rules clearly spells out what
is expected from an employer
vis-à-vis
members and the
fund. Of particular importance in this regard is
Clause 6.2.2 of
the Fund Rules
. It appears to be common cause or not disputed
that deceased’s employer did not notify the fund in writing of
the death of
the member concerned (deceased in this case) within six
months of his passing, thereby causing deceased’s beneficiaries
to
forfeit the benefit to which they were entitled.
[20]
In my view, there was a legal duty on the part of
deceased’s employer (first defendant) to report
his death to
the fund within six months of his passing and first defendant’s
omission in this regard resulted in the or harm
or loss to his
beneficiaries. First defendant is therefore liable for such loss. The
plaintiff did her part by reporting deceased’s
death to his
employer. Had they required any information or document from her in
order for them to liaise with the fund, they should
have told her.
Her evidence that she asked both
Ms Lepeane
sometimes referred
to as
Lebyane
/
Liphiyane
as well as
Mr Mpumza
as evidenced by the copy of the letter that was exhibited in court in
respect of
Mr Mpumza
, has not been assailed. I therefore do
not have any difficulty finding in favour of the plaintiff.
COSTS
[21]
The general rule is that costs follow the event.
This entails that the successful party is entitled to a
costs order.
That unsuccessful party should bear the costs. This rule can however
be departed from where there are good grounds
to do so. There is no
reason why I should depart from the rule in so far as first defendant
is concerned. Namely, as far as first
defendant’s liability for
plaintiffs’ costs is concerned.
[22]
I have already mentioned how second defendant
ended being party to these proceedings. Namely, that it was
as a
result of first defendant pleading that it did not assume all the
responsibilities and / or obligations of Wild Coast District
Council,
that a large part thereof was taken over by the second defendant. In
my view, plaintiffs did what a prudent and cautious
litigant would do
by joining the second defendant in light of first defendant’s
plea as aforementioned. The second defendant
has obtained success in
that he has been exonerated from liability for plaintiffs’
loss. It will be appropriate in my view
to exercise my discretion by
ordering the unsuccessful party to shoulder the costs of both
successful parties.
ORDER
[23]
1. First defendant is held liable for payment of
plaintiffs’ agreed or proven loss or damages suffered
by the
plaintiffs as a result of first defendant’s failure to report
deceased’s death within six (6) months of his
passing.
2.
First defendant is ordered to pay costs of suite which costs shall
include those of the second defendant
.
_____________
NG BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiffs
:
Adv:
Nyangiwe
Instructed
by
: B
MAKADE INCORPORATED
92
Sutherland Street
IDK
Building – Office no. 7
MTHATHA
Ref: Mr B Makade
Tel.: 047 – 532 2506
For
the 1
st
Defendant
: Adv:
Vapi
Instructed
by
: MESSRS
MAKAULA ZILWA & COMPANY
8
Merriam Raziya Street
MTHATHA
Ref: Mr Makunga/Mth
Tel.: 047 – 050 0063
For
the 2
nd
Defendant
: Adv:
Sambudla
Instructed
by
: MESSRS
SZ JOJO ATTORNEYS
74
Madeira Street
MTHATHA
Ref: SZJ/otdm/015
Tel.: 047 – 531 1496
Date
Heard
: 11 &
12 May 2015 and 24 June 2019
Date
Reserved
: 24 June
2019
Date
Delivered
: 26 June
2019