About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2013
>>
[2013] ZAECMHC 27
|
|
Mbashe Traditional Leaders in Municipal Council v Mbashe Local Municipality (1282/2012) [2013] ZAECMHC 27 (26 September 2013)
1
IN THE HIGH COURT OF SOUTH
AFRICA
EASTERN CAPE HIGH COURT :
MTHATHA
NOT REPORTABLE
CASE NO: 1282/2012
In the matter between :
MBHASHE TRADITIONAL
LEADERS IN
MUNICIPAL COUNCIL
..................................................................................
APPLICANT
and
MBHASHE LOCAL MUNICIPALITY
...........................................................
RESPONDANTS
JUDGMENT
DAWOOD J :
1) The Applicants brought an Application wherein they sought the
following relief as set out in the notice of motion:-
“
1.1. That the respondent’s actions of
terminating applicants’
allowances
or out of pocket expenses
in January
2012 be and is hereby declared unlawful, invalid and of no force and
effect.
1.2. That the respondent be and is hereby directed to
forthwith re-instate applicants’
allowances
or out of pocket
expenses in the same
amount it was when it was terminated (R8480.00).
1.3. That the respondent’s failure to pay
applicants’
allowances or out of
pocket expenses
during the period
commencing in July 2009 to February 2010 be and is hereby declared
unlawful, invalid and of no force and effect.
1.4. That the respondent be and is hereby ordered to
effect the necessary adjustment to the applicants’
allowances
or out of pocket
expenses for the
period commencing in July 2009 to February 2010 in accordance with
the resolutions respectively taken on 28
th
February 2011, 30
th
March 2011 and 20
th
April 2012.
1.5. That the respondent be and is hereby directed to
forthwith account to the applicants for such money that might be due
to them
as
allowances or out of pocket
expenses
and back pay in consequence
of their appointments and identification to participate in the
respondent’s council proceedings.
1.6. That the respondent be and is hereby ordered to
forthwith pay the amount that is due to the applicant as back pay.
1.7. That the respondent be and is hereby ordered to
pay costs of this application on an attorney and client scale.
1.8. Further and/or alternative relief.”
2) FACTUAL BACKGROUND
2.1) The Applicants herein alleged inter alia:-
a) That they were appointed to participate in the Respondent’s
council in terms of the
Municipal Structures Act number 117 of
1998 [herein referred to as The Municipal Structures Act].
b) That they were entitled to payment of
remuneration,
which
is better known as “
out of pocket expenses”.
c) According to the Applicants the payment of such remuneration was
required to be paid from the budget of the municipality in
question
in terms of
The Municipal Structures Act.
d) The Respondent’s council in
pursuance of the provisions
of section 81 of Act 117 of 1998
met on the 28
th
of
February 2011, 20
th
of March 2011 and 20
th
of
April 2011 respectively and resolved that the
allowances
of
the traditional leaders be reviewed and increased to R8480.00.
e) That these
allowances
were terminated without them being
informed or allowed to make representation in this regard.
f) That the resolution is still in existence and deserves to be
complied with.
g) That the non-compliance with the dispensation is unlawful, invalid
and of no force and effect.
h) Paragraph 4 of annexure G.M
reads as follows:-.
The council at its meeting held on
28
th
of
February 2011
resolved that:-
“
5.2.3 that the municipality must review the
remuneration
of traditional leaders be increased to R8480-00.
5.2.4 that the
allowances
of the traditional
leaders be increased to R8480
The matter is re-submitted for the council to
consider paying the traditional leaders R8480-00 retrospectively from
July 2009 to
February 2011.”
i) Annexure B
which is in respect of the meeting of the
30
th
March 2011
reads inter alia as follows:-
5.2.3. “
that the municipality must review the
remuneration
of traditional leaders.
5.2.4. that the
allowances
of the traditional leaders be
increased to R8480.”
j) Annexure “C”
the council meeting 20
th
of April 2011 reads as follows:-
“……
The council at its meeting
held on 28
th
of February 2011. It was resolved
8.1.1 that the municipality must review the
remuneration of traditional leaders and
8.1.2 that the allowances of the traditional leaders
be increased to R8480-00.
The matter is re-submitted to consider paying the
traditional leaders R8480-00 retrospectively from July 2009 to
February 2011 ……
………
At the moment there was no
sufficient budget for this purpose
8.1.3 (a) The council resolved that the matter should
be referred to the office of the mayor.”
2.2) The Respondents’ response was inter alia:-
That the traditional leaders did not become entitled to remuneration
for their participation at the meetings held by the Respondents.
They were only entitled to be paid their “
out of pocket
expenses”
and not be remunerated in any other way for
their attendance at the meeting.
That there is no provision made in the Municipal Structures Act of
1998 for an allowance.
That every traditional leader gets paid a salary in the normal
course, and the attendance at a council meeting entitles each
traditional leader to no more than the “
out of pocket
expenses”
envisaged in section 81 (5) of the Act.
That the payment of R8480 per month was contrary to the provisions
for the Municipality Structures Act and constituted unauthorized,
unnecessary and wasteful expenditure.
The Applicants were never employees of the respondent.
That the Resolution of the council meeting held on the 28
th
of February 2011 resolved nothing more than that a future task lies
ahead for the council namely that they must, at some time
in the
future, review the remuneration of traditional leaders.
That the remuneration of traditional leaders is a salary issue
whereas the payment of out of pocket expenses is an entirely
different issue.
There is
no resolution
to the effect that the council
reviewed
the “
out of pocket expense”
tariff of
traditional leaders and resolved to increase this
tariff to R8480-00 per month. (my highlighting)
In circumstances where no resolution records that the council “has”
reviewed the out of pocket expenses, it is clear
that no increase of
those expenses can take place until such time as the review has been
dealt with.
The resolutions referred to by the Applicants have nothing to do
with the increase in respect of out of pocket expense.
In all the circumstances it is absolutely clear that the “
out
of pocket expenses” were neither reviewed, nor increased in
accordance with any official or legal resolution of council
to the
sum of R8480-00
and that is the end of the matter.(my emphasis)
3) ISSUES TO BE DETERMINED
3.1) Whether or not the Applicants claim, properly construed, fall
within the ambit of the provisions of
section 81 (5) of the
Municipal Structures Act 117 of 1998
, in that can the resolutions
referring to allowances and remuneration be construed to be making
reference to “out of pocket”
expenses.
3.2) Whether or not a resolution was taken to review the “out
of pocket expenses” and increase the same, thus entitling
the
Applicants to the relief they seek.
4) In dealing with the first issue the following factors are
relevant.
(i) The Applicants in the founding papers relies upon the provisions
of
Section 81 (5) (b) of The Municipal Structures Act
for
their entitlement to payment of remuneration which they say is better
known as “out of pocket expense”
(ii) The Applicant’s claim accordingly on their own papers is
based upon the provisions of
Section 81 (5)
of the Municipal
Structures Act.
(iii) Section 81 (5) reads as follows:-
“
Part
6:
Participation
of traditional leaders
81. Participation in
municipal councils
(1) Traditional authorities
that traditionally observe a system of customary law in the area of a
municipality, may participate
through their leaders, identified in
terms of subsection (2), in the proceedings of the council of that
municipality, and those
traditional leaders must be allowed to attend
and participate in any meeting of the council.
(2)
(a) The MEC
for local government in a province, in accordance with
Schedule
6
and
by notice in the Provincial Gazette, must identify the traditional
leaders who in terms of subsection (1) may participate in
the
proceedings of a municipal council.
(b) The number of traditional
leaders that may participate in the proceedings of a municipal
council may not exceed 20 per cent
of the total number of councillors
in that council, but if the council has fewer than 10 councillors,
only one traditional leader
may so participate.
(c) If the number of
traditional leaders identified in a municipality’s area of
jurisdiction, exceeds 20 per cent of the total
number of councillors
the MEC for local government in the province may determine a system
for the rotation of those traditional
leaders.
(3) Before a municipal council
takes a decision on any matter directly affecting the area of a
traditional authority, the council
must give the leader of that
authority the opportunity to express a view on that matter.
(4) The MEC for local
government in a province, after consulting the provincial House of
Traditional Leaders, may by notice in the
Provincial Gazette -
(a) regulate the participation
of traditional leaders in the proceedings of a municipal council;
and
(b) prescribe a role for
traditional leaders in the affairs of a municipality.
(5)
(a) When
participating in the proceedings of a municipal council a traditional
leader is subject to the appropriate provisions of
the Code of
Conduct set out in
Schedule
1
of
the
Local Government: Municipal Systems Act, 2000
.
[Subs. (5) substituted by
s.
121
of Act 32/2000 and renumbered to (5)(a) by s. 18 of Act 51/2002]
(b)
(i) A traditional leader who
participates in the proceedings of a municipal council is entitled to
the payment of out of pocket expenses in respect of such
participation.(my emphasis)
(ii) A municipal
council
must determine the criteria for, and calculation of,
the out of
pocket expenses referred to in subparagraph (i).
(iii) Out of pocket expenses
referred to in subparagraph (i) must be paid from the budget of the
municipality in question.
[Para. (b) added by s. 18 of
Act 51/2002]
[S.81 amended by s.5 of Act
33/2000]”(my emphasis)
Section 81 (5) (b) (i)
of the
Municipal Structures Act
makes it abundantly clear that the traditional leaders are
entitled to the payment of “
out of pocket”
expenses, for their participation in the meeting of council.
Section 81 does not make provisions for or mention the term
allowances, salaries or remuneration.
These terms are however specifically mentioned in
the
Remuneration of Public Officers Bearers Act 20 of 1998 (
herein
after referred to as the Remunerations Act).
Section 5 of the Remunerations Act reads as follows
:-
“
Salaries,
allowances and benefits of traditional leaders, non-traditional
leader members of traditional councils, members of kingship
or
queenship councils, members of local Houses of Traditional Leaders,
members of provincial houses of Traditional Leaders and
members of
National House of Traditional Leaders
(1) Traditional leaders,
non-traditional leader members of any traditional council,
non-traditional leader members of any kingship
or queenship council,
non-traditional leader members of traditional sub-councils,
non-traditional leader members of principal traditional
councils;
members of any local House of Traditional Leaders, members of any
provincial house of Traditional Leaders and members
of the National
House of Traditional Leaders shall, despite anything to the contrary
in any-other law contained, be entitled to
such
salaries and
allowances as may from time to time be determined by the President
after consultation with the Premier
concerned by proclamation in
the Gazette, after taking into consideration -
(a) any recommendations of the
Commission;
(b) the role, status, duties,
functions and responsibilities of different categories of traditional
leaders, non-traditional leader
members of traditional councils,
non-traditional leader members of traditional sub-councils,
non-traditional leader members of
principal traditional councils;
members of kingship or queenship councils, non-traditional members of
kingship or queenship councils,
different members of the local Houses
of Traditional Leaders, different members of the Houses of
Traditional Leaders in the various
provinces and different members of
the National House of Traditional Leaders;
(c) the affordability of
different levels of
remuneration
of public office bearers;
(d) the current principles and
levels of remuneration in society generally;
(e) the need for the promotion
of equality and uniformity of
salaries and allowances
for
equal work performed;
(f) the enhancement of
co-operation, unity and understanding between traditional communities
nationally;
(g) the extent of the role and
functions of traditional leaders across provincial borders; and
(h) inflationary increases.
(2) Despite the provisions of
subsection (1), a traditional leader, a non-traditional leader member
of a traditional council, non-traditional
leader members of
traditional sub-councils, non-traditional leader members of principal
traditional councils; a member of a kingship
or queenship council, a
member of a local House of Traditional Leaders, a member of a
provincial house of Traditional Leaders or
a member of the National
House of Traditional Leaders who holds different public offices
simultaneously, is only entitled to the
salary, allowances and
benefits of the public office for which he or she earns the highest
income,
but -
(a)
this
subsection shall not preclude the payment of out of pocket expenses
for the performance of functions other than those for which
such
office bearer receives such highest income; and ( my emphasis)
(b) where only an allowance
has been determined in terms of subsection (1) in respect of a
traditional leader's membership of a
local House of Traditional
Leaders, a provincial house of Traditional Leaders or the National
House of Traditional Leaders, such
a traditional leader shall be
entitled to such an allowance in addition to his or her salary,
allowances and benefits as a traditional
leader.”(my emphasis)
(viii) The
Remuneration Act
deliberately distinguishes between
the terms “salary” ; allowance and remuneration from the
term “out of pocket
expenses”
(ix) The
Remuneration Act
stipulates that “Salary and
allowances or remuneration” are derived from the office which
earns the traditional leader
his or her “highest income”,
(in this case their roles as traditional leaders), and “out of
pocket expenses”
are derived from any simultaneous position
held, (in this case, their roles on the municipal council).
(x) Further
section 81 (5)
of the
Municipal Structures Act
specifically makes mention
only
of out pocket expenses with
regard to what they are entitled to for their participation on the
municipal council.
(xi) There is accordingly no basis upon which out of pocket expenses
can be referred to as salary, remuneration or allowance, upon
an
examination of these two Acts.
(xii) The Applicants accordingly cannot use the terms interchangeably
as they are distinct concepts and are governed by different
Acts.
(xiii) The relevant provisions of the Municipal Structures Act does
not even make mention of the allowance or remuneration.
5) Turning to the second issue of whether or not a resolution was
passed or taken to review or increase their out of pocket expenses,
the following factors are relevant:-
a) The Applicants have pleaded that their claims is based on The
Municipal Structures Act.
b) The Applications accordingly in order to succeed must establish
that the resolutions passed, whether in the present, past or
future
tense, refer to “out of pocket expenses” as defined in
section 81 of the Municipal Structures Act.
c) The resolutions referred to all use the term “
allowances
and remunerations”,
which are terms that are
distinguishable and have been distinguished in the respective Acts
fro the term “out of pocket expenses”.
d) There is no resolution that refers to the term “out of
pocket expenses”
e) The resolutions relied upon by the Applicant to justify the
payment of the amount claimed as “out of pocket” expenses
do not support their contention that reference is made to the payment
of “out of pocket” expenses, in any of the resolutions.
f) There is accordingly no valid resolution relied upon entitling the
applicants to an increase in their out of pocket expenses
in the
amount claimed or at all.
g) The fact that the Applicants use the terms “allowance”
and “out of pocket expenses” interchangeably,
in the
notice of motion and affidavit does not make them interchangeable.
h) The Applicant accordingly has failed to establish that a
resolution was taken to increase their out of pocket expenses.
6) In light of the aforegoing, and the fact that reliance was placed
on section 81 of the Municipal Structures Act, there is no
need to go
into whether or not what was resolved was at odds with the
Local
Government: Municipal Finance Management Act 56 of 2003
and
whether what was resolved and paid constituted an irregular
expenditure as defined by
section 1 (c)
of the Act considering
that salary increases would be the purview of the President in
consultation with the Premier and not the
municipality, since the
Applicant is actually claiming “out of pocket expenses”
and not a remuneration or allowance
or salary.
7) CONCLUSION
7.1) The Applicants have failed to discharge the onus resting upon
them to establish their entitlement to the relief sought, having
regard to the aforegoing which can briefly be summarised as follows:-
a) The term remuneration and allowance cannot be used to describe
“out of pocket” expenses upon a consideration of
the
provisions of
Section 81 of the Municipal Structures Act
and
Section 5 of the Remuneration of Public Office Bearers Act.
b) The term “out of pocket expenses” is distinct and
distinguishable from the term allowance, salary or remuneration.
c) There is no resolution referred to by the Applicant’s that
refers to an increase in the payment of their “
out of
pocket”
expenses.
d) There is accordingly no resolution entitling the Applicants to the
relief sought by them in the notice of motion.
8. ORDER
a) The Application is accordingly dismissed with costs.
_____________________________
F.B.A DAWOOD
(JUDGE OF THE EASTERN CAPE HIGH COURT)
DATE HEARD: 03 MAY 2013
DATE DELIVERED: 26 SEPTEMBER 2013
FOR THE APPLICANT MR ZONO
APPLICANTS ATTORNEYS: A.S ZONO AND ASSOCIATES
SUITE 319 – 3
RD
FLOOR
ECDC BUILDING
MTHATHA
Ref: SZ/NQ/M.811
TEL: 047 532 4263
FOR THE RESPONDENT: ADV COLE
RESPONDENTS ATTORNEYS: DYUSHU MAJEBE ATTORNEYS c/o: GUBEVU HLALUKANA
INC
NO. 18 OWEN STREET
MTHATHA
REF: HLALUKANA/NT Tel: 047 531 3863
: