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[2014] ZAFSHC 219
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Matjhabeng Municipality v Njilo (A261/2013) [2014] ZAFSHC 219 (11 December 2014)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION: BLOEMFONTEIN
Appeal Number: A261/2013
DATE: 11 DECEMBER 2014
In the matter between:
MATJHABENG
MUNICIPALITY
...............................
Appellant
And
TSHYIZADLA
NJILO
................................................
Respondent
CORAM: NAIDOO, J et MOENG, AJ
JUDGMENT: MOENG, AJ
HEARD ON: 8 DECEMBER 2014
DELIVERED ON: 11 DECEMBER 2014
[1] This is an unopposed appeal against
the judgment of the court a quo, delivered by the learned magistrate
Mr. CF Nekosie in the
Magistrates’ Court Virginia. The central
issue to be decided is whether Section 55(1) of the Municipal Systems
Act 32 of
2000 (“MSA”) authorises a municipal manager to
act as agent of a municipality in launching an application in court.
[2] The appellant brought an
application in the court a quo prohibiting the respondent from
proceeding with the erection of buildings
and for the demolition of
additional buildings on erf 2169 Meloding Hostel Virginia. Appellant
contended that the buildings did
not comply with the regulations in
terms of the National Building Regulations and Building Standards Act
103 of 1997, since no
prior approval was obtained from the local
authority before the commencement of the building process as required
by section 4 of
Act 103 of 1997.
[3] The respondent denied in limine
that Mr. German Ramathebane (“Ramathebane”), the
municipal manager and deponent
to the appellant’s founding
affidavit, had the necessary authority and locus standi to act on
behalf of the appellant. The
averments in the founding affidavit
which related to his authority to act read as follows:
‘I am an accounting officer of
the applicant herein and as such duly authorised in terms of my
employment contract read together
with the provisions of section
115(3) of the Municipal Systems Act, 32 of 2000 to depose to this
affidavit which will be used in
the application…..’
[4] He further stated in reply that:
‘I am in terms of the
section
82(a)
of the
Local Government Municipal Structures Act 117 of 1998
the Head and Accounting Officer of the applicant. My power to
institute legal proceedings is derived from section 55(1) of the
Municipal Systems Act 32 of 2000 that provides that a municipal
manager is inter alia responsible and accountable for the
implementation
of national and provincial legislation applicable to
the municipality.( my emphasis)
It is undeniable that the duty to
enforce the National Building Regulations and Building Standards Act
103 of 1997 rests on the
applicant as evident from the provisions of
section 21 of the Act and being the administrative head of the
applicant, I have the
authority and locus standi to act on behalf of
the applicant.’
[5] The court a quo, in a well-reasoned
judgment, upheld the point in limine and dismissed the application
with costs. The learned
magistrate concluded that section 115(3) upon
which the appellant relied in the founding affidavit is intended to
facilitate the
service of documents and process on the municipality
and does not empower the municipal manager to institute legal
proceedings.
He concluded that the authority to institute proceedings
does not come into being by the mere appointment of a municipal
manager
but is dependent upon the roles and responsibilities assigned
to him in terms of section 53 of the Municipal Systems Act, 32 of
2000. He in conclusion reasoned that no such document, defining his
authority to institute legal proceedings, was attached and
the
applicant therefore failed to show that the institution of legal
proceedings was authorised. It is against this decision that
the
current proceedings are directed.
[6] Appellant approached us with an
application for condonation for the late filing of the application
for a date of hearing of
the appeal and an order for the
reinstatement of the lapsed appeal. This application was unopposed
and was accordingly granted.
Sufficient reasons were advanced for the
delay. I do not deem it necessary to delve further into the reasons
for having granted
same.
[7] Section 55 (1)(p) of the MSA
provides that as head of administration, the municipal manager of a
municipality is subject to
the policy directions of the municipal
council, responsible and accountable for the implementation of
national and provincial legislation
applicable to the municipality.
It is trite that the executive authority of a municipality does not
vest in its municipal manager
or any of its employees. Its executive
authority is in terms of section 151(2) of the Constitution, vested
in its municipal council.
The municipal manager therefore executes
his duties subject to the policy directions of the municipal council.
[8] In Manana v King Sabata Dalindyebo
Municipality
[2011] 3 All SA 140
(SCA) at para [17] Nugent JA held
that section 55(1) of the MSA 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. He
further held that there
is no basis for construing the section as
simultaneously divesting the municipal council of any of its
executive powers. 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.
[9] Section 55(1) (p) only caters for
the implementation or execution of national or provincial legislation
by the municipal manager.
In casu, the municipal manager would be
responsible to implement the National Building Regulations and
Building Standards Act.
This Act requires of the municipal manager to
promote uniformity in the law relating to the erection of buildings
in the area of
jurisdiction of his municipality and prescribes
building standards.
[10] In terms of section 53 of the MSA,
a municipality must, within the framework of and in accordance with
relevant provisions
of the Municipal Structures Act, the Systems Act
and other applicable legislation, define the specific role and area
of responsibility
of the municipal manager in precise terms by way of
separate terms of reference. If the municipal council intended to
institute
legal action, such a resolution should have been taken to
empower the municipal manager to institute court proceedings on its
behalf.
[11] Mr. Greyling sought to find
authority from Nelson Mandela Metropolitan Municipality v Greyvenouw
CC (3263/02)
[2003] ZAECHC 5
(21 February 2003) for his argument that
section 55(1) of the MSA empowers a municipal manager to institute
legal proceedings on
behalf of a municipality. In Nelson Mandela
Metropolitan Municipality v Greyvenouw CC the respondent also
challenged the authority
of the deponent on behalf of applicant,
pointing out that no resolution or written authorisation formed part
of the papers. It
was argued on behalf of applicant that the
municipal manager derived his powers to institute legal proceedings
from section 55
of the MSA.
[12] What however distinguishes this
matter from the facts in casu is that the applicant was in possession
of a resolution of the
erstwhile Port Elizabeth Municipality which
delegated to the Chief Executive/Town Clerk (the predecessor in title
of the Municipal
Manager), the power to ‘consider and take
whatever action he may deem necessary in all legal actions, legal
applications
and arbitrations’, to ‘take all action
necessary to conduct litigation and arbitration in the best interests
of the
Council’ and, perhaps most pertinently, in ‘the
circumstances in which, in his opinion, immediate action is required,
to protect the interests of the Council or to enforce the
regulations, tariffs or Town Planning Scheme of the Council by way of
interdict, mandamus or other court order, to institute or intervene
in any legal proceedings including criminal prosecutions or
in any
court of law’. Any reliance on this case is therefore
misplaced.
[13] In Eveleth v Minister of Home
Affairs
[2004] 3 All SA 322
(T), the court dealt with a similar
provision in the Immigration Act. Deponent on behalf of the
respondents attempted to rely on
section 3(1) of the Immigration Act,
which provided that for the purpose of the Act, the department may
through its duly authorised
officials represent the State in any
proceedings in a Court. The Act however made it clear that only a
departmental officer who
is duly authorised and directed by the first
respondent may represent the State in court proceedings. The court
held at 326F–H
that once the authority of a departmental
officer to represent the State is challenged, it is incumbent upon
the State to produce
proof that such officer is duly delegated,
directed and authorised to represent it in the proceedings. The mere
say-so of a departmental
officer in an affidavit is no proof of
either delegation or authority without submitting acceptable evidence
or documentation to
substantiate the averment.
[14] In ANC Umvoti Council Caucus and
Others v Umvoti Municipality
2010 (3) SA 31
(KZP), the Full Bench,
after an analysis of the relevant legislation, was satisfied that no
legislation directly authorised the
speaker or the manager of a
municipality to act as agent of a municipality in launching an
application in court. The court was
satisfied that since section
151(2) of the Constitution vested the executive and legislative
authority of a municipality in its
municipal council, it was
necessary for the council to have delegated the power to institute
legal proceedings. Such a delegation
must be in writing, absent
which, a council resolution was required to empower an official to
institute court proceedings on its
behalf.
[15] The conclusion reached by the
learned magistrate that the authority to institute proceedings does
not come into being by the
mere appointment of a municipal manager
but is dependent upon the roles and responsibilities assigned to him
in terms of section
53 of the MSA can therefore not be faulted. Only
a municipal manager who is duly authorised and directed by the
council may represent
the municipality in court proceedings.
[16] I am satisfied that section 55(1)
of the MSA does not authorise a municipality manager to act as agent
of a municipality in
launching an application in court. I will
therefore propose that the following order be made:
1. The appeal is dismissed.
L.B.J. MOENG, AJ
I concur, and it is so ordered.
S NAIDOO, J
On behalf of the appellant: Adv. P
Du P Greyling
Instructed by: Motaung Attorneys
BLOEMFONTEIN
On behalf of the respondent: No
appearance