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[2018] ZAFSHC 5
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Twilight Breeze Trading 119 CC and Another v Mantsopa Local Municipality and Others (4134/2017) [2018] ZAFSHC 5 (1 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
4134/2017
In
the matter between:-
TWILIGHT
BREEZE TRADING 119
CC
First
Applicant
[Registration
number: 2003/065363/23]
SAMILA
ABDULA
Second
Applicant
and
MANTSOPA
LOCAL
MUNICIPALITY
First
Respondent
THE
MUNICIPAL
MANAGER:
MANTSOPA
Second Respondent
LOCAL
MUNICIPALITY
NTILANE
HANYANE
Third Respondent
CORAM:
MBHELE,
J
HEARD
ON:
26
OCTOBER
2017
DELIVERED
ON:
01
FEBRUARY
2018
[1]
On 11 August 2017 a rule
nisi
was granted in favour of the
First and Second Applicants calling upon the respondents to show
cause why the following order should
not be made final:
1.1
"That, pending the outcome of the relief claimed in Part B of
this application,
First and Second Respondent are interdicted and
restrained from evicting First and Second Applicants from the
property known as
Melrose Farm, from which the First Respondent's
pound is conducted ("the property).
1.2
Second Respondent is interdicted and restrained from threatening,
either directly
or indirectly, to evict First and Second Applicants
from the Property by way of unlawful means.
1.3
Pending the outcome of the relief claimed in Part B of this
application, First and
Second Respondents are interdicted and
restrained from giving effect to a decision by either the First
Respondent's Council or
the Second Respondent, to appoint Third
Respondent as Pound Master for the First Respondent.
1.4
Pending the outcome of the application for the relief claimed in Part
B of this application,
Third Respondent is restrained from performing
or exercising any rights and
I
or duties arising out of the
decision by the Council of First Respondent and / or by the Second
Respondent- to appoint him as Pound
Master for the First Respondent,
alternatively, arising out of the actual appointment as such.
1.5
First Respondent is to pay the costs of this application,
alternatively, and in the
event that the application be opposed by
any of the remaining Respondents, such
Respondents who oppose
this application are ordered to pay the costs
thereof, jointly and severally."
[2]
In part 8 of the notice of motion the applicants pray for an order in
the following terms:
PART
B
(a)
Reviewing and setting aside the decision taken by the Council of
First Respondent or taken by the Second Respondent
to appoint Third
Respondent as the Pound Master for the First Respondent,
alternatively, the decision to award the tender for appointment
of
Pound Master for First Respondent, to the Third Respondent ("the
Decision").
(b)
Declaring invalid - and setting aside the appointment of Third
Respondent as Pound master for First Respondent
under and in terms of
the Decision.
(c)
Declaring invalid - and setting aside any contract or Service Level
Agreement concluded between First and
Third Respondent, subsequent to
the Decision, or otherwise concluded with Third Respondent.
(d)
Substituting the Decision with one in terms of which the tender is
awarded to the First Applicant, alternatively
ordering that the First
and
I
or Second Applicant be appointed as the Pound Master for
First Respondent.
Alternatively
:
(e)
Ordering that the tender be re-advertised and adjudicated in
accordance with the First Respondent's Supply
Chain Management
Policy.
Alternatively:
(f)
Granting such order as the above Honourable Court deems just.
(g)
Ordering the First Respondent to pay the cost of this application and
in the event of it being opposed by any of
the other Respondents,
that such Respondents, (together with First Respondent) pay the cost
of the application jointly and severally.
BACKGROUND
[3]
First applicant is a closed corporation with its registered office at
M 739 Thusanong Manyatseng , Ladybrand. The second applicant
is the
sole member of the first applicant.
[4]
The Second Applicant entered into a service level agreement with the
First Respondent in terms of which she was appointed as
the Pound
Master for the area of Ladybrand.
[5]
The appointment followed an advertisement by the First Applicant in
the local newspaper calling upon individual members of the
community
to submit applications accompanied by CVs and covering letters for
appointment as Pound Master.
[6]
The first applicant responded to the call. The second applicant acted
on behalf of the first applicant. The appointment letter
was issued
in the name of the second applicant. The Second applicant's
appointment was for a period of 1 year commencing on 1 July
2014.
[7]
On 30 July 2015 the then Municipal Manager, Selepe (Selepe) addressed
a letter to the second applicant informing her that the
lease
agreement would be renewed for a period of 2 months with effect from
1 August 2015.
[8]
Subsequently, first respondent advertised in the local press seeking
applications from interested parties for appointment of
Pound Master,
with the closing date being 28 August 2015.
“
APPLICATIONS
ARE HEREBY AWAITED FOR THE POSITION OF POUND MASTER FOR MANTSOPA
LOCAL MUNICIPALITY
REQUIREMENTS:
A
sound knowledge of the Pound By-laws of Mantsopa Local
Municipality, Animal Identification Act, 2002 (Act No. 6 of 2002) and
the
Pound Ordinance, 1952(0rdinance 18 of 1952, as amended)
•
Ability to handle animals
•
Ability to identify
different sickness in animals and quarantine of such animals
•
Ability to liaise with
State Vet on ail aspects of animals in the pound
•
A valid driver's licence
•
Previous experience as
Pound Master will be preferential
Key
performance areas:
•
Receiving of animals by
pound master, issuing of receipts for impounded animals,
•
Ensure separate number of
enclosures for different animal as per municipal by-laws,
•
Keeping of pound register
and ensuring availability at all times of register, for inspection,
free of charge, to any authorised
officer of the municipality,
veterinary surgeon, any member of the police service, submission of
pound register entries to municipality
after pound sales within
fourteen (14) days, adhere to fees as determined by council,
•
Ensure notice of sale,
•
Arrange for auctioneer if
not done by pond master, must ensure, that animals are properly fed
and kept in safe and clean environment.
•
Provide reports on the
pound and its stock to the Municipality monthly and on ad hoe basis
as and when required to do so.
A
SERVICE AGREEMENT WHICH WILL STIPULATE POUND FEES AND CONDITIONS WILL
BE ENTERED INTO BETWEEN MANTSOPA LOCAL MUNICIPALITY AND
THE APPOINTED
POUND MASTER
Please
forward your CV and covering letter (including three contactable
references) and certified copies of qualifications.
To
the
following
address:
The Municipal Manager
Mantsopa
Local Municipality,
P O
Box 64, LADYBRAND
9745
or hand deliver 38 Joubert
Street,
LADYBRAND, 9745.
Fax
and E-mail applicants will not be considered.
Further
enquiries contact Mr S M Selepe:
051 924 0654/5 Fraudulent
qualifications, documentation or driver's license from applicants
will immediately be disqualified.
A
candidate/ applicant who canvasses any Councillor for preference will
also be disqualified from the selection process or from
appointment.
The
Municipality reserves the right to appoint or not to appoint any of
the applicants.
CLOSING
DATE: 28 AUGUST 2015 AT 16:30”
[9]
Second applicant submitted an application, in response to the advert,
on behalf of the first applicant.
[10]
The first respondent, where after, issued a letter
to the second applicant informing her that the Council
of the first
respondent resolved to renew the contract between the second
applicant and the first respondent for a period of 1
year commencing
on 1 August 2015 on the same terms and conditions as the previous
agreement.
[11]
The First respondent once again called for the application for the
appointment of a pound master through advertisement placed
in a local
newspaper with a closing date on 02 December 2016. The advertisement
was crafted as follows:
"
APPLICATIONS
ARE HEREBY AWAITED FOR THE POSITION OF POUND MASTER FOR MANTSOPA
LOCAL MUNICIPALITY
REQUIREMENTS:
A
sound knowledge of the Pound By-laws of Mantsopa Local Municipality,
Animal Identification Act, 2002 (Act No. 6 of 2002) and the
Pound
Ordinance, 1952(0rdinance 18 of 1952, as amended) Ability to handle
animals. Ability to identify different sicknesses in
animals and
quarantine of such animals. Ability to liaise with State Vet on all
aspects of animals in the pound. A valid drivers'
licence. Previous
experience as Pound Master will be preferential
KEY
PERFOMANCE AREAS:
Receiving
of animals by pound master, issuing of receipts for impounded
animals, ensure separate number of enclosures for different
animals
as per municipal by-laws, ensure destruction of dangerous or
contagious animals, keeping of pound register and ensuring
availability at all times of register, for inspection, free of
charge, to any authorised officer of the
municipality, veterinary surgeon, any member of the police service,
submission of pound register entries to municipality after
pound
sales within fourteen (14) days, adhere to fees as determined by
council, ensure notice of sale, arrange for auctioneer if
not done by
master, must ensure that animals are properly fed and kept in safe
and clean environment. Provide reports on the pound
and its stock to
the Municipality monthly and on ad hoe basis as and when
required to do so.
A
SERVICE LEVEL AGREEMENT WHICH WILL STIPULATE POUND FEES AND
CONDITIONS WILL BE ENTERED INTO BETWEEN MANTSOPA LOCAL MUNICIPALITY
AND THE APPOINTED POUND MASTER
Please
forward your CV and covering letter (including three contactable
references) and certified copies of qualifications.
To
the following address:
The Municipal Manager Mantsopa
Local
Municipality, PO Box 64,
LADYBRAND
9745 or hand deliver
38
Joubert Street, LADYBRAND, 9745.
Fax
and E-mail applications will not be considered.
Further
enquiries contact Mr SM Selepe:
(051) 924 0654/5 Fraudulent
qualifications, documentation or driver's license from applicants
will immediately be disqualified.
A candidate/applicant who
canvasses any Councillor for preference will also be disqualified
from the selection process or
from appointment. The Municipality
reserves the right to appoint any of the applicants.
CLOSING
DATE: 02 December 201615:30
S.M
SELEPE MUNICIPAL MANAGER"
[12]
On 23 June 2017 Selepe wrote a letter, with the following contents,
to the third respondent informing him of the council resolution
of 12
May 2017 to appoint him as Pound Master.
"APPOINTMENT
OF POUND MASTER: MANTSOPA LOCAL MUNICIPALITY
Please
note that Council resolved vide resolution C131 dated 12 May 2017 as
follows:
(a)
That Ntelane Johnson Hanyane be appointed for a period of three (3)
years on the same terms and conditions
as the previous agreement.
(b)
That rent and services be paid to the municipality.
(c)
That a percentage must be paid to the municipality from proceeds from
any sale of animals.
Written
acceptance of the above is awaited
whereafter an agreement between yourself and
the municipality
will be drawn up."
[13]
On 3 July 2017 the second applicant received a notice dated 28 June
2017 stating that the contract has expired and the Council
resolved
not to extend it any further. In terms of the notice she had to
vacate the premises by 30 June 2017. The letter was signed
by Selepe
who left the employ of the first applicant on 30 June 2017.
[14]
Attached to the notice was a letter dated 19 October 2016 which was
advising first applicant to stop operating as a Pound Master
and
vacate the premises by 31 October 2016. Second applicant denies
receiving the letter dated 19 October 2016.
[15]
On 20 July 2017 the second applicant had a meeting with the Acting
Municipal Manager, Palesa Moloi (Moloi). Moloi informed
her that the
council of the first respondent appointed the third respondent as a
Pound Master and she had to work with him until
end of July
2017whereafter she had to vacate the premises.
[16]
The parties are at variance as to whether the first and second
applicant applied for a position of a pound master in response
to an
advertisement that closed on 02 December 2016. It is the first
respondent's case that the second applicant did not submit
her
application as per the said advertisement.
[17]
The second applicant avers that she submitted her tender by placing
it in a designated tender box. She resists the process
because the
tender box was not opened in public and she was not informed of the
outcome. The second applicant alleges that she
was contacted by
Selepe during May 2017 requesting her to submit a copy of her bid as
it was not amongst those that were in possession
of the municipality.
CONTENTIONS
BY THE PARTIES
[18]
Mr. Louw, on behalf of the applicants, submitted that the second
applicant has a right to stay in occupation of the premises
pending
the review application as the appointment of the third respondent as
Pound Master is illegal. He contended further that
the first
respondent's process of appointing the third respondent was irregular
in that the first respondent failed to observe
its Supply Chain
Management policy. He argued that the first and second applicant had
a right to be informed of the outcome of
the tender process. He
argued further that the fact that the
second applicant did not submit
a tender in her personal capacity is
not a reason valid enough to disqualify her bid. He further argued
that failure by the first
respondent's council to adjudicate the
tender that was advertised in August 2015 deprived the second
applicant of an opportunity
to participate in a competitive bidding
process.
[19]
Mr Manyi, on behalf of the first and second respondent submitted that
the first respondent did not invite tenders but invited
individuals
to apply for a position of a Pound Master.
He,
further, argued that the second applicant's appointment in 2014 was
as a result of a similar process and that if she finds the
current
process irregular she has no right to hold on to her appointment.
He,
further, argued that the first and second applicant failed to adhere
to the requirements as stipulated in the advertisement.
He contended
that the second applicant cannot claim a right flowing from a process
she considers flawed. It is the first respondent's
case that when it
called for applications for appointment of Pound Master with closing
date of 2 December 2016 the first and second
applicants' applications
were not among those received by the first respondent.
LEGAL
PRINCIPLES
[20]
The Free State Provincial Notice No.192 of 2011 defines the Pound
Master and Pound as follows:
I.
Pound means a fenced - off area consisting of one or more camps
established by the Municipality
and placed under the control of a
pound master, for the housing and care of animals which
are astray, lost or at large;
II.
Pound master, a person who may be:
a)
a part time or full time employee of a Municipality or be appointed
under a service delivery
agreement to keep and operate a pound.
b)
appointed under a service delivery agreement to keep and operate a
pound.
[21]
A lessee of a property has no security of tenure in perpetuity. If
the period of lease is left undetermined, it can be terminated
on
notice. Beyond the period of lease, the lessee has no security of
tenure. (See
Maphango (Mgidlana) and Others
v Aengus Lifestyle
Properties
(Pty)
Ltd
2011 (3) SA 535
SCA).
[22]
It is well established under
Plascon Evans
rule that in
application proceedings, a final order can be granted only if the
facts averred in the applicant's affidavit, which
have been admitted
by the respondent, together with the facts alleged by the latter,
justify such order. (See
Plascon Evans Paints Ltd v Van
Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) and
National Director of Public
Prosecutions v
Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
SCA
[23]
It is clear from all the advertisements that the first respondent did
not call for tenders. It invited natural persons to submit
applications for a position of a pound master. There is no indication
that there was a designated tender box for that purpose.
Second
applicant's version that she submitted her tender /bid in a tender
box is far -fetched and untenable as the available evidence
does not
support such version.
[24]
The second applicant is aggrieved by the appointment of the third
respondent because, in her view, his application
does not comply with the supply chain management policy of the first
respondent. In her view, failure by the third
respondent
to attach tax clearance and BEE certificates disqualifies him for
appointment. The advertisement did not require submission
of such
documents. This argument cannot hold centre.
[25]
The advertisement required interested parties to submit a CV,
driver's licence and a covering letter for consideration. This
is in
line with the Provincial Notice which requires a pound master to be a
natural person. Third respondent responded to the application
in
terms of what was required in the advertisement.
[26]
Paragraph 16 of the service level agreement signed and entered into
between the second applicant and the first respondent provides
for
renewal of the contract upon 14 days' notice prior to the expiry of
the contract.
[27]
The Council of the first respondent has a right to accept or refuse
such renewal. There is no indication in the contract that
the
appointment was permanent.
[28]
The question to ask is whether the second applicant has a right to
continue running the business as a pound master when her
contract
with the first respondent has expired. She runs a business of
receiving animals into the pound at the instance of the
first
respondent.
[29]
The second applicant's occupation of the property designated as
a pound stems from her position as the pound master.
Her
contract expired in 2016. It was not renewed by the first respondent.
With the contract having expired and no proof of submission
of her
application, in line with the requirements set out in the
advertisement, she has no right to continue operating the pound.
[30]
The first respondent appointed third respondent as the pound master
and such appointment has not been set aside. As of current
the second
applicant is not a pound master for the first respondent and she is
not entitled to run the pound.
[31]
The argument by Mr. Louw that the allocation of land from which a
pound is run must be done through competitive bidding is
to be
answered in the review application. It is clear that a natural person
has to be appointed to run a pound and thereafter municipality
has to
allocate land designated for that purpose.
[32]
The applicants' occupation of the pound is unlawful as there is no
contract authorizing such occupation. She cannot continue
running the
pound in absence of the contract authorising her to act as pound
master. The argument that the applicants' pending
review application
gives applicants a right to stay in occupation of the pound cannot be
sustained.
In
view of the above the rule
nisi
must be discharged.
ORDER
ORDER
1.
The rule
nisi
is discharged;
2.
First and second applicant to pay the cost of this application
jointly
and severally, one paying to absolve the other.
3.
Costs to include costs of one counsel.
_______________
NM
MBHELE
On
behalf of the Applicant:
Adv M Louw
Instructed
by:
Hill, McHardy & Herbst Inc
BLOEMFONTEIN
On
behalf of the Respondents: Adv
TL Manye
Instructed
by:
Rampai Attorneys
BLOEMFONTEIN