About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2009
>>
[2009] ZAKZPHC 47
|

|

ANC Umvoti Council Caucus and Others v Umvoti Municipality (AR 392/2009) [2009] ZAKZPHC 47; 2010 (3) SA 31 (KZP) (25 September 2009)

REPORTABLE
IN THE KWAZULU-NATAL HIGH
COURT, PIETERMARITZBURG
REPUBLIC
OF
SOUTH AFRICA
APPEAL NO. AR 392/2009
In the matter between:
ANC UMVOTI COUNCIL
CAUCUS

First Appellant
PHILANI GODFREY
MAVUNDLA

Second Appellant
ZWELINGANI TITUS
NGUBANE

Third Appellant
JEFFREY
NGOBESE

Fourth Appellant
SIBONGISENI A.
NZAMA

Fifth Appellant
BHEKUMUZI O.
VILAKAZI

Sixth Appellant
DINGAAN P.
ZONDI

Seventh Appellant
PAMELA T.
ZUMA

Eighth Appellant
AHMED
SHAIKH

Ninth Appellant
and
UMVOTI
MUNICIPALITY
Respondent
_______________________________________________________________
JUDGMENT
_______________________________________________________________
GORVEN J
[1]
The respondent launched an application seeking a rule
nisi
with interim relief on an urgent basis. It arose out of conduct which
purported to be resolutions taken by the municipal council
(“the
council”) of the respondent. The respondent contended that these
resolutions were not taken by the council because, at
the time they
were taken, the council was not properly constituted.
[2]
A rule
nisi
was issued in the following terms:
A rule
nisi
do hereby issue calling upon the
Respondents to show cause, if any, at 09h30 on the 7
th
day
of May 2008 why an order should not be made in the following terms:
(i)
The gathering of councillors of the Applicant which continued
to sit
and purported to act as a municipal council after the Speaker had
left the meeting of the council on 24 April 2008 and until
his return
to the council chamber was not the council of the said municipality
and its resolutions have no force and effect.
(ii)
The purported removal by the said councillors of Alderman
Ngubane as
mayor and the appointment of T.Z. Ngubane in his stead is void and of
no force and effect.
(iii)
Alderman P.M.
Ngubane is the mayor of the municipality.
(iv)
The Applicant is
ordered to pay the costs of this application, provided that, in the
event of any person opposing the granting of
this order, then an
order will be made that such person or persons pay the costs
occasioned by such opposition, jointly and severally,
the one paying
the other to be absolved.
[3]
In addition to the first appellant all councillors other than the
speaker (“the
speaker”), who deposed to the founding affidavit,
were cited as respondents. The second to ninth appellants are those
councillors
who opposed the application.
[4]
The rule
nisi
was subsequently confirmed by Gyanda J. In
addition to the confirmation of the rule, the second to ninth
appellants were ordered
to pay the costs of the application jointly
and severally, the one paying the others to be absolved.
[5]
Leave was granted by the court
a quo
to appeal to this court
in relation to the authority of the municipal manager to bring the
application and in relation to the question
of costs.
[6]
The first aspect, therefore, is the finding that the respondent
proved on the papers
that the acting municipal manager (“the
manager”) had authority to bring the application on behalf of the
respondent.
[7]
The factual basis of this first aspect arose as follows:
a)         The speaker
averred in the founding affidavit that he was authorised by the

municipal manager to depose to that affidavit on behalf of the
respondent.
b)         In the answering
affidavit, the appellants made a number of averments. They
averred
that the speaker had no authority to bring the application
proceedings on behalf of the respondent. They continued that
the
municipal manager was not authorised to delegate his powers to the
speaker. This was followed by an averment that the power
to institute
legal proceedings in the name of the respondent rested with the
council. They concluded by averring that although
the speaker claimed
to derive his authority from the manager, no confirmatory affidavit
from the manager had been annexed and that
the manager “is not
authorised to delegate any of his powers to the Speaker … for
purposes of instituting these proceedings.
Any such delegation would
necessarily have to be in writing. No such letter has been attached
to the Applicant’s founding affidavit.”
There was an assertion
that the council was the only body which had the power to initiate
litigation. The challenge was not formulated
specifically as one to
the authority of the municipal manager but it seems to have been
dealt with on this basis.
c)         This attack
prompted a reply. In it the speaker asserted that he had been
verbally
authorised by the then manager on 25 April 2008. The manager
had been unable to depose to an affidavit since he had to go to
Queenstown
but had since deposed to an affidavit, which was annexed.
In addition, the manager employed at the time of the replying
affidavit
put up an affidavit ratifying the speaker’s actions prior
to that date and authorising him to continue. An assertion was also

made that the manager had had powers delegated to him by the council
of the respondent which included the power to represent the

respondent in court proceedings. In support of this delegation, an
excerpt from the delegation of powers section of the Standard

Operating Manual of the Department of Traditional and Local
Government Affairs was put up. A further assertion was made that the

respondent, as part of its obligations to develop a supply chain
management policy and to delegate powers, had delegated to the

manager
inter alia
the power to appoint lawyers.
[8]
It is clear that, where authority is challenged in the answering
affidavit, it is
permissible to make out a case in reply
[1]
.
It is further clear that, even if the authority was not in place when
the litigation commenced, actions taken can be ratified
subsequently.
This was fully dealt with in
Smith v
KwaNonqubela Town Council
[2]
where the following was stated:
It was further argued that, after an objection has been
taken to the authority of a person to act on behalf of another,
reliance
may not be placed upon a ratification that did not exist
when the objection was taken. …Lest there be any future doubt about
the matter, this judgment holds that the point is bad ….
[9]
This does not, of course, resolve the matter. It only goes so far as
to show that,
if the manager had the relevant power, he had ratified
the actions of the speaker in writing by virtue of the supporting
affidavits
annexed to the replying affidavit. Mr Gajoo SC who,
together with Mr Kuboni, appeared for the appellants, submitted in
closely
reasoned heads of argument that the speaker failed to prove
on the papers that the manager was duly authorised by the respondent

to launch the application on its behalf.
[10]
Mr Gajoo analysed the relevant legislation and submitted 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. I agree with
this analysis. He submitted that,
since s151 (2) of the Constitution of the Republic of South Africa,
1996, vests 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 any such delegation, a council resolution
was required
to empower an official to institute court proceedings on
its behalf. These submissions are sound. Mr Seggie made the broad
submission
that a conspectus of the relevant legislation such as
s82
of the
Local Government: Municipal Structures Act, No. 117 of 1998
,
s55
of the
Local Government: Municipal Systems Act, No. 32 of 2000
and
ss 60
,
61
and
62
of the
Local Government: Municipal Finance
Management Act, No 56 of 2003
shows that the legislature has given
municipal managers extensive powers. This may be so, but his
submission does not go so far
as to contend that these powers include
the power to litigate on behalf of the municipalities by which they
are employed. Neither
can I find any such power in the legislation
referred to. In addition, the extract from the Standard Operating
Manual relied upon
by Mr Seggie does not in terms imbue them with
such power. All it does is to repeat powers already conferred on
managers by virtue
of
s55
of the
Local Government: Municipal Systems
Act, No 32 of 2000
.
[11]
Mr Gajoo submitted further that, when the applicant in application
proceedings is an artificial
person, some evidence should be placed
before the court to show that the applicant had duly resolved to
institute the proceedings.
In this he relied on the dictum of
Watermeyer J to the effect that “the mere signature of the notice
of motion by an attorney
and the fact that the proceedings purport to
be brought in the name of the applicant are in my view
insufficient”.
[3]
He developed his argument by submitting that the respondent is a body
corporate with perpetual succession and is capable of suing
and being
sued
[4]
.
“The council therefore by a statute is made the agent of the body
corporate but the council itself is not a body corporate;
it consists
of a number of members whose acts are determined by the majority and
when they act collectively by resolution properly
taken then they act
as agents for the body corporate, the municipality”.
[5]
This means that an employee such as the manager is not, without more,
entitled to act as the agent of a municipality. He sought
to rely on
Gcali’s
case where the court held that a Town Clerk under a previous
legislative dispensation was not an agent of the municipality and
did
not have power to litigate for and on behalf of a municipality. In
that case, however, a different legislative framework governed
the
relationship between the Town Clerk and the municipality. No general
principle can therefore be gleaned from it without reference
to the
ruling legislative framework governing it at the time. In addition,
in
Gcali’s
case, the applicant sued in his own name
nomine
officio
claiming to represent the
municipality. It was held that he had no
locus
standi
to do so. In the present matter
the municipality was cited as the applicant rather than the speaker
or the manager.
[12]
Mr Seggie did not press the submissions on authority contained in his
heads of argument at the
hearing. He contented himself in submitting,
albeit faintly, that in situations such as those which confronted the
manager in this
matter, the manager must be accorded some basis for
approaching the court on behalf of the municipality. He could give no
reason
for advancing such a submission nor could he cite any
authority in support of it. I have been unable to find any such
authority.
[13]
I have grave reservations whether the court
a
quo
was correct in its conclusion that
a case was made out on the papers that the manager had authority to
institute the proceedings.
This despite the fact that certain
averments in the replying affidavit relating to authority went
unanswered.  In such a situation
the appellants could have
sought leave to deliver an additional affidavit dealing with the new
matter raised but did not do so
[6]
.
In the view I take of the matter, however, it is not necessary to
decide this point.
[14]
The question is, rather, whether an applicant is obliged to prove, on
the papers, that authority
has been given to initiate litigation
where the applicant is an artificial person. As mentioned above, this
was held to be the
position in the
Merino
Ko-Operasie Beperk
case
[7]
and this approach has been followed over the years
[8]
.
[15]
In
Ganes & Another v Telecom Namibia
Limited
[9]
the Supreme Court of Appeal dealt with similar issues as the present
ones arising from the papers in that matter. Streicher JA
held:
There is no merit in the contention that Oosthuizen AJ
erred in finding that the proceedings were duly authorised. In the
founding
affidavit filed on behalf of the respondent Hanke said that
he was duly authorised to depose to the affidavit. In his answering

affidavit the first appellant stated that he had no knowledge as to
whether Hanke was duly authorised to depose to the founding
affidavit
on behalf of the respondent, that he did not admit that Hanke was so
authorised and that he put the respondent to the
proof thereof. In my
view, it is irrelevant whether Hanke had been authorised to depose to
the founding affidavit. The deponent
to an affidavit in motion
proceedings need not be authorised by the party concerned to depose
to the affidavit. It is the institution
of the proceedings and the
prosecution thereof which must be authorised. In the present case the
proceedings were instituted and
prosecuted by a firm of attorneys
purporting to act on behalf of the respondent. In an affidavit filed
together with the notice
of motion a Mr Kurz stated that he was a
director in the firm of attorneys acting on behalf of the respondent
and that such firm
of attorneys was duly appointed to represent the
respondent. That statement has not been challenged by the appellants.
It must,
therefore, be accepted that the institution of the
proceedings was duly authorised. In any event,
Rule 7
provides a
procedure to be followed by a respondent who wishes to challenge the
authority of an attorney who instituted motion
proceedings on behalf
of an applicant. The appellants did not avail themselves of the
procedure so provided. (See
Eskom v Soweto City Council
1992
(2) SA 703
(W) at 705C - J.)
[16]
Rule 7(1)
provides as follows:
Subject to the provisions  of sub-rules (2) and (3)
a power of attorney to act need not be filed, but the authority of
anyone
acting on behalf of a party may, within 10 days after it has
come to the notice of a party that such person is so acting, or with

the  leave of the court on good cause shown at any time before
judgment, be disputed, whereafter such person may no longer
act
unless he  satisfies the  court that he is authorised so to
act, and to enable him to do so the court may postpone
the hearing of
the  action or application.
[17]
The dictum in
Ganes’s
case held that the use of this rule
provides the remedy to be employed by a respondent to challenge
whether the initiation of litigation
on the part of an artificial
person has been authorised. Flemming DJP reasoned as follows in the
Eskom
case referred to:
The care displayed in the past about proof of authority
was rational. It was inspired by the fear that a person may deny that
he
was party to litigation carried on in his name. His signature to
the process, or when that does not eventuate, formal proof of
authority would avoid undue risk to the opposite party, to the
administration of justice and sometimes even to his own attorney…
The developed view, adopted in Court
Rule 7(1)
, is that
the risk is adequately managed on a different level. If the attorney
is authorised to bring the application on behalf
of the applicant,
the application necessarily is that of the applicant. There is no
need that any other person, whether he be a
witness or someone who
becomes involved especially in the context of authority, should
additionally be authorised. It is therefore
sufficient to know
whether or not the attorney acts with authority.
As to when and how the attorney's
authority should be proved, the Rule-maker made a policy decision.
Perhaps because the risk is
minimal that an attorney will act for a
person without authority to do so, proof is dispensed with except
only if the other party
challenges the authority. See
Rule 7(1).
Courts should honour that approach. Properly applied, that should
lead to the elimination of the many pages of resolutions, delegations

and substitutions still attached to applications by some litigants,
especially certain financial institutions.
[10]
[18]
This underlying rationale was endorsed and expanded on by Brand JA
when he dealt with a ground
of appeal relating to lack of
authorisation in
Unlawful Occupiers,
School Site v City of Johannesburg
[11]
to the following effect:
[14] At the hearing of the appeal, counsel for the
appellants conceded that she could not support this ground of appeal.
I think
the concession was fairly made. The issue raised had been
decided conclusively in the judgment of Flemming DJP in
Eskom v
Soweto City Council
1992 (2) SA 703
(W), which was referred to
with approval by this Court in
Ganes and Another v Telecom Namibia
Ltd
2004 (3) SA 615
(SCA) at 624I - 625A. The import of the
judgment in
Eskom
is that the remedy of a respondent who
wishes to challenge the authority of a person allegedly acting on
behalf of the purported
applicant is provided for in Rule 7(1) of the
Uniform Rules of Court…
[15] These remarks by Flemming DJP must be understood
against the background that Rule 7(1) in its present form was
introduced by
way of an amendment only in 1987. Prior to the
amendment an attorney was obliged to file a power of attorney
whenever a summons
was issued in an action, but not in motion
proceedings. The underlying reason for the distinction, so it was
said, was that in
motion proceedings there is always an affidavit
signed by the applicant personally or by someone whose authority
appears from the
papers (see eg
Ex parte De Villiers
1973 (2)
SA 396
(NC)). On the basis of this reasoning it is readily
understandable why, before 1987, the challenge to authority could be
directed
only at the adequacy of the averments in the applicant's
papers and pre-1987 decisions regarding proof of authority should be
read
in that light.
[16] However, as Flemming DJP has said, now that the new
Rule 7(1) remedy is available, a party who wishes to raise the issue
of
authority should not adopt the procedure followed by the
appellants in this matter, ie by way of argument based on no more
than
a textual analysis of the words used by a deponent in an attempt
to prove his or her own authority. This method invariably resulted
in
a costly and wasteful investigation, which normally leads to the
conclusion that the application was indeed authorised… In
the
present case, for example, the respondent’s challenge resulted in
the filing of pages of resolutions annexed to a supplementary

affidavit followed by lengthy technical arguments on both sides.
[19]
The court
a quo
cited extracts from these judgments but did deal with the procedure
to be adopted in challenging whether an application had been

authorised. Mr Gajoo sought to distinguish the present matter from
the above cases by relying on the observations of van Zyl J
in
Cekeshe & Others v Premier, Eastern
Cape & Others
[12]
where he said:
In
South African Allied Workers' Union v De Klerk NO
(supra)
it was held that the type of authority contemplated by
Rule 7 is the special type of power which is given by a client to his
attorney
to authorise him to institute or defend legal proceedings on
the client's behalf. The authority of a litigant's attorney to
represent
him is not a fact which needs to be challenged in pleadings
or established at a trial. Rule 7 dispenses with proof thereof except

only if the other party challenges the authority. On the other hand,
the authority of one litigant to launch proceedings on behalf
of
another needs to be alleged in the pleadings.
Both
De
Klerk’s
and
Cekeshe’s
cases involved multiple
applicants whom one of the applicants claimed to represent. Those
cases required confirmatory affidavits
by those applicants to
associate themselves with the evidence of the deponent to the
founding affidavit. They are, accordingly,
distinguishable on the
facts from the present matter.
[20]
Prior to the amendment, Rule 7(1) read as follows:
Before summons is issued in any action at the instance
of the plaintiff’s attorney, the attorney shall file with the
registrar
a power of attorney to sue. Such power of attorney shall
state generally the nature of the particular action authorized to be
instituted,
the nature of the relief to be claimed therein and the
names of the party to be sued.
[21]
In
De Klerk’s
case
[13]
,
Jansen J said the following:
It is true that reference to an attorney was omitted
from the amended subrule (1), but if regard is had to Rule 7 in its
entirety,
it is clear to me that, in spite of the omission of a
reference to an attorney in subrule (1), the type of authority
contemplated
by Rule 7 means the special type of power which is given
by a client to his attorney to authorise him to institute or defend
legal
proceedings on the client’s behalf.
The power of attorney contemplated by Rule 7(1) is a
power to take certain formal procedural steps, namely to issue
process and
to sign Court documentation such as a summons or notice
of motion on behalf of a litigant. It does not contemplate a general
authority
by one person to another to represent him in legal
proceedings. There is a clear distinction to be drawn between an
attorney being
mandated in the form required by Rule 7 to issue
formal Court process, and the general authority of one litigant to
act in all
respects on behalf of others.
[22]
In the light of the dictum of Flemming DJP that,
If the attorney is authorised to bring the application
on behalf of the applicant, the application necessarily is that of
the applicant.
There is no need that any other person, whether he be
a witness or someone who becomes involved especially in the context
of authority,
should additionally be authorised,
I have
doubts as to the accuracy of the distinction drawn by the learned
judge in
De Klerk’s
case. In addition to no longer requiring a power of attorney absent a
challenge, the rule maker made at least two significant changes
to
the rule.  Whereas before the need to provide a power of
attorney was limited to actions, the amended rule applies to an

“action or application”. In addition, it is the authority of
“anyone acting on behalf of a party” not just an attorney
which,
absent a challenge, is presumed to be valid. The rules relating to
interpretation of statutes provide that, “[
p
]
rima
facie
the deliberate change of
expression must be taken to import a change of intention”.
[14]
Rules 7(2), (3) and (4) refer specifically to attorneys filing powers
of attorney. It seems to me, therefore, that the legislature
intended
the authority of “anyone” who claimed to be acting on behalf of
another in initiating proceedings, and not only attorneys,
to be
dealt with under Rule 7(1) and not by way of the application papers.
However, since this appeal deals with the authority
to represent an
artificial person, I refrain from further comment on the situation
applying where one litigant purports to represent
another in
applications.
[23]
In each of the
Eskom, Ganes
and
Unlawful Occupiers
cases, the courts mentioned the averments made on the papers which
dealt with issues of authority. The question therefore arises
whether
the
dicta
from these cases referred to above are
obiter
.
Mr Gajoo submitted that a respondent has an election as to whether to
challenge authority to initiate proceedings on the papers
or by way
of Rule 7(1). If the
dicta
were
obiter
and the courts
in those cases made findings on the papers, there may be some force
in his submission. I will deal with each in
turn and explain why I am
of the opinion that the
dicta
in question are not
obiter
.
[24]
In the
Eskom
case, whilst the deponent made the averment that
he was authorised to make the affidavit, Flemming DJP held that,
because the application
was delivered under the name and signature of
an attorney, there was no need to rely on proof that someone other
than the attorney
was also authorised. He went on to hold that
authority had to be challenged on the level of whether that attorney
in fact held
empowerment. He made no findings concerning the
averments in the affidavits relating to authority. His dealings with
the manner
in which to challenge authority were therefore not
obiter
.
[25]
In
Ganes’s
case an attorney had put up an affidavit together
with the notice of motion confirming his authority to represent the
respondent.
The court accepted that the proceedings had been
authorised. Since the appellants did not avail themselves of the
procedure provided
in Rule 7, no challenge to the authority of the
attorney had been made even though a challenge was made to the
authority of the
deponent to the founding affidavit who was not the
attorney.  This case therefore also held that it is the
authority of an
attorney which must be challenged and that this must
be done in terms of Rule 7(1).
[26]
In the
Unlawful Occupiers
case Brand JA, after stating that
the procedure of dealing with authority on the affidavits should not
be adopted, said:
All this culminated in the following question: Is it
conceivable that an application of this magnitude could have been
launched
on behalf of the municipality with the knowledge of but
against the advice of its own director of legal services? That
question
can, in my view, be answered only in the negative.
In the
context of the judgment, Brand JA, in making these comments, was
demonstrating, as one of the reasons for his earlier support
of the
procedure of using Rule 7(1), the futility of wasting time and costs
in the application when the Rule 7(1) procedure had
been available.
In other words, this is not a finding on the papers which renders the
dictum obiter
,
it is a further example of why he supports the approach of Flemming
DJP endorsed earlier. Brand JA could not have put it more
plainly
than to say that “a party who wishes to raise the issue of
authority should
not
adopt the procedure followed by the appellants in this matter”
[15]
.
He clearly endorsed as correct the statement by Flemming DJP that the
rule-maker had made a policy decision that Rule 7(1) must
be used to
challenge authority. This is therefore also binding authority for the
procedure. I therefore consider that this court
is bound by these
judgments.
[27]
Even if these
dicta
are
obiter
they have strong persuasive force, given that they emanate from or
are endorsed by the Supreme Court of Appeal as well as their
clear
and unequivocal nature. With respect, the reasoning in these cases
also appears to me to accord with sound legal principle.
The deponent
to an affidavit is merely a witness, as was pointed out by Streicher
JA in
Ganes’s
case. It is the attorney of a litigant who, by signing a notice of
motion and issuing application papers, signifies that that attorney

has been authorised to initiate the application on behalf of the
named litigant. Whether or not the litigation has been properly

authorised by the artificial person named as the litigant should not
be dealt with by means of evidence led in the application.
If clarity
is required, it should be obtained by means of Rule 7 (1) since this
is a procedure which safeguards the interests of
both parties. It
frees the applicant from having to produce proof of what may not be
in issue, thus saving an inordinate waste
of time and expense in “the
many resolutions, delegations and substitutions still attached to
applications”
[16]
.
It protects a respondent in that, once the challenge is made in
terms of Rule 7(1), no further steps may be taken by the
applicant
unless the attorney satisfies the court that he or she is so
authorised. Of course if the challenge is to the authority
of the
respondent’s attorney in an application, these comments apply
equally but for the opposite reasons.
[28]
I am therefore of the view that the position has changed since
Watermeyer J set out the approach
in the
Merino
Ko-Operasie Beperk
case. The position
now is that, absent a specific challenge by way of Rule 7(1), “the
mere signature of the notice of motion
by an attorney and the fact
that the proceedings purport to be brought in the name of the
applicant”
[17]
is sufficient.  It is further my view that the application
papers are not the correct context in which to determine whether
an
applicant which is an artificial person has authorised the initiation
of application proceedings. Rule 7(1) must be used. This
means that I
disagree with Mr Gajoo’s submission that Rule 7(1) provides only
one possible procedure and that, if a respondent
elects to challenge
the matter of authority on the application papers, the applicant is
required to prove such authority on the
papers.
[29]
There was no challenge in terms of Rule 7 (1) in the application
which is the subject of this
appeal. The appropriate procedure was
therefore not used by the appellants. It was accordingly not
necessary for the applicant
to prove the authority to initiate the
application nor appropriate to attempt to do so on the papers. It was
also not necessary
for the court
a quo
to make a finding
relating to authority on the affidavits delivered in the matter.
Since there was no challenge in the required
manner to the authority
of the respondent’s attorney who signed the notice of motion and
initiated the application in the accepted
way, this court does not
have to deal with the question of authority. I am therefore of the
view that the appeal on this issue
must fail.
[30]
As regards the costs order, the primary submission by Mr Gajoo was
that the relevant appellants
were indemnified against such order in
the light of the provisions of s28(1)(b)(i) of the Local Government:
Municipal Structures
Act, No. 117 of 1998 (“the Structures Act”).
The submission was that the appellants concerned were protected by
the provisions
of this section because the resolutions which were set
aside fell squarely within the ambit of this section.
[31]
Subsections 28(1)(b)(i) and 28(2) read as follows:
(1) Provincial legislation in terms of section 161 of
the Constitution must provide at least-
(b)     that councillors are not
liable to civil or criminal proceedings, arrest, imprisonment or
damages for-
(i)   anything that they have said in,
produced before or submitted to the council or any of its committees…
(2) Until provincial legislation contemplated in
subsection (1) has been enacted the privileges referred to in
paragraphs (a) and
(b) of subsection (1) will apply to all municipal
councils in the province concerned.
[32]
It is not disputed that provincial legislation has not been enacted
and that, in the light of
s28(2), the provisions of s28(1)(b)(i)
apply to the council of the respondent.
[33]
The appellants relied on the case of
Swartbooi
& Others v Brink & Others
[18]
.
The appellants in that matter had been councillors of the third
respondent municipality and had taken part in deliberations
concerning,
and voted in favour of, two decisions taken by the
council that affected the rights of the first and second respondents
who were
also councillors. The High Court reviewed and set aside the
resolutions and awarded costs
de bonis
propriis
against the appellants. The
first decision set aside was that the respondents in question should
recuse themselves from council
meetings pending an investigation into
their conduct which had been called into question in a report tabled
at the council meeting.
The second was a resolution suspending the
first respondent without pay for one year.
[34]
The Constitutional Court held that the order requiring the appellants
to pay the costs of the
application amounted to liability to civil
proceedings within the meaning of s28(1)(b). In that case the
individual councillors
were not original parties to the application
which was brought against the council. In addition, it was held that
the conduct which
led the High Court to make the costs order against
the appellants included the production of a report by the speaker,
the statements
made by various members in support of the resolution
and their votes in favour of them. The Constitutional Court found
that that
conduct fell within the ambit of s28(1)(b) since these were
integral to deliberations at a full council meeting and to the
legitimate
business of that meeting.
[35]
It was submitted by the respondents in that case that the section
must be interpreted to protect
only conduct integral to the
legislative functioning of the council as distinct from
administrative or executive decision making.
This submission was
rejected by the Constitutional Court in the following terms:
For the purpose of this case it is
therefore sufficient to say that s 28 protection covers the conduct
of members of a municipal
council that constitutes participation in
deliberations of the full council (as distinct from a meeting of any
of its committees)
in the course of the legitimate business of that
council.
[19]
[36]
In the present matter, all of the councillors other than the speaker
who deposed to the founding
affidavit on behalf of the respondent,
were joined in the application as respondents. This was proper since
all had an interest
in the outcome of the application. They were
therefore liable to civil proceedings within the meaning of those
words in s28 in
the light of the reasoning in the
Swaartbooi
case.
[37]
The question which arises in this matter, therefore, is whether the
second to ninth appellants
were participating in deliberations of the
full council in the course of the legitimate business of that
council. If so, based
on the reasoning in
Swartbooi’s
case,
the appeal against the costs order must succeed since they would be
protected by the provisions of s28(1)(b)(i). If not,
the question is
whether, under the common law as submitted by Mr Gajoo in the
alternative, the costs aspect of the appeal should
succeed. If this
is also decided against the appellants, the appellants can only
succeed if there are grounds to interfere on appeal
with the exercise
of the discretion of the court
a quo
in making the costs
order. I shall deal with s28(1)(b)(i) first.
[38]
Section 28(1)(b)(i) is clearly aimed at promoting free and
untrammelled speech within a specific
context, viz. the legitimate
business of municipal councils. It is designed to enhance the proper
ventilation of council business
for the common good. In such a
context, councillors must not fear repercussions if they should say
something which might otherwise
prove actionable. It extends the
limited privilege of immunity afforded to parliamentarians in debate
within the National Assembly
to councillors within municipal
councils. It was necessary that s161 of the Constitution of the
Republic of South Africa, 1996,
made such provision. Prior to the new
dispensation ushered in by the Constitution, municipal councils were
not organs of State
but operated under delegated power. They were
subject to judicial scrutiny to a far greater extent than was the
National Parliament.
Under the present dispensation, municipal
councils have original legislative powers and “[t]he deliberation
ordinarily takes
place in the assembly in public where the members
articulate their own views on the subject of the proposed
resolutions”
[20]
.
In the same way that the legislative business of municipal councils
is now subject to judicial scrutiny on a similar basis to
that of the
Provincial and National assemblies, so must there be extended
protection for the councillors taking part in the work
of councils.
This appears to have been the underlying purpose of enacting s
28(1)(b)(i). But, also for this reason, the protection
is confined to
the “legitimate business of that council” whether the nature of
the business is part of the legislative, executive
or administrative
functioning of the municipal council concerned. There is no
protection in a context outside of legitimate business
of the
council.
[39]
The resolutions which were taken in the present matter fall within
the competence of a properly
constituted municipal council.  Can
it therefore be said that the resolutions in question were part of
the legitimate business
of the council of the respondent?  It
was held by the court
a quo
in paragraph (i) of the confirmed
rule
nisi
that the gathering at which the resolutions in
question were adopted was not the council since it was not properly
constituted
at the time.  This aspect of the judgment of the
court
a quo
is not subject to appeal and the appellants are
therefore bound by it, as is this court. This means that the
appellants cannot
claim to have been involved in deliberations of the
council at the time since the actions complained of were not part of
the business
of the council of the respondent.  This, of course,
clearly distinguishes the present matter from that dealt with in the
Swaartbooi
case where the resolutions were taken at a properly
constituted council meeting. In the present matter, the resolutions
were not
part of the legitimate business of the council of the
respondent. Therefore, the protection afforded to councillors by
s28(1)(b)(i)
does not apply to the second to ninth appellants.
[40]
The question then arises whether, under the common law, the costs
order should be overruled.
There is a long line of cases which deal
with the principles involved. These were articulated by Lord de
Villiers CJ as early as
1911 in the following words:
I am satisfied, however, that in a
case like the present where the tribunal from which the appeal comes
has acted in a judicial
or quasi-judicial capacity, and no question
is raised as to the good faith of such tribunal, or as to the
legality or regularity
of its proceedings, it should not, in case of
an appeal to a Superior Court, be subjected to the payment of the
costs of such appeal.
[21]
The
jurisdictional fact required to trigger this common law principle is
that the person or body claiming immunity must have acted
in an
official capacity at the time the actions complained of were taken.
Once again, in the present matter, the relevant respondents
did not
act, in the gathering in question, in an official capacity. Neither
were the proceedings regular or legal. That much has
already been
dealt with. The exception governing officials acting in the course of
their duties therefore does not apply in this
case.
[41]
Is the exercise of the discretion of the court
a
quo
in making the costs order subject
to attack on appeal? For this to be the case, there must have been
misdirection or irregularity
or the absence of grounds on which a
court, acting reasonably, could have made the order.
[22]
In the
Swaartbooi
case the High Court issued a rule
nisi
requiring the individual councillors who had supported the impugned
resolutions to show cause why they should not pay the costs
de
bonis propriis
[23]
.
They had no choice in the matter of opposing the confirmation
of the rule
nisi
if they wanted to avoid paying costs. In the present matter all of
the councillors of the municipality, other than the speaker
who
deposed to the founding affidavit, were joined as respondents since
they were interested parties. No costs order was sought
against them
unless they chose to oppose the application. The basis of seeking a
costs order was not their support for the resolutions
in the meeting
concerned but their opposition to the application.  The present
appellants chose to oppose the application.
I can find no better way
of expressing their position than in the words of Mason J, in a
context where a town council opposed the
setting aside of a licence
granted by it:
With reference to the town council,
they are a body who have perforce to decide matters of this kind. If
they had done nothing but
state that they gave their decision
bona
fide
, and would
submit to any order the Court might make, I should have had
considerable difficulty in awarding costs against them,
because they
are not litigants in the ordinary sense of the word: they have no
direct interest in the matter. But as a matter of
fact they took upon
themselves the position of an ordinary respondent, and instructed
counsel to oppose the application. Having
in a matter of this kind,
of a civil nature, taken upon themselves the opposition, they are
bound to undertake the responsibility
of that position, namely,
liability for costs.
[24]
[42]
The effect of what the second to ninth appellants say the court
a
quo
should have done, viz. to make the respondent bear the costs,
would be to burden the ratepayers they are elected to serve with the

legal costs needlessly incurred by them. I cannot conceive how such
an approach would be justified. The burdening of the appellants
with
costs cannot therefore be attacked on the basis of an improper
exercise of the discretion of the court
a quo
.
[43]
There is a problem with the order given by the court
a quo
which appears to have arisen by oversight. The order granted by
Gyanda J was contained in two paragraphs. In paragraph 1 he confirmed

the rule
nisi
. In paragraph 2 he ordered the second to ninth
appellants to pay the costs of the application jointly and severally.
The confirmation
of the rule
nisi
in paragraph 1, however,
resulted in the costs order in paragraph (iv) being granted. In this
order all of the appellants were
ordered to pay the costs occasioned
by the opposition to the application jointly and severally, the one
paying the others to be
absolved. Since the first appellant also
opposed the application, a costs order to this effect was granted
against it, along with
the second to ninth appellants. However, in
paragraph 2 of the order, the first appellant was excluded from the
order and the costs
were not limited to costs occasioned by
opposition but encompassed the costs of the application as a whole.
Both sets of counsel
agreed that the granting of two irreconcilable
costs orders should be set aside on appeal. Both likewise agreed
that, since the
respondent had only sought an order in terms of
paragraph (iv) of the rule
nisi
, paragraph 2 of the order by
Gyanda J should be set aside. However, since neither counsel dealt
with the matter in their heads
of argument, the success of the
appellants on this aspect does not warrant any different costs order
relating to the appeal.
[44]
In the result:
1.
The appeal is allowed in respect of
paragraph 2 of the order of the court
a
quo
, which paragraph is set aside.
2.
The appeal against paragraph 1 of the order
of the court
a quo
is dismissed with costs, such costs to be paid by the appellants
jointly and severally, the one paying the others to be absolved.
____________________________
GORVEN J
I agree.
_____________________________
SWAIN J
I
agree, and it is so ordered.
__________________________
TSHABALALA
JP
Date of
Appeal

:           11
September 2009
Date of
Judgment

:           25
September 2009
Counsel for
the Appellants
:
Adv V I
Gajoo SC
Adv W S Kuboni
Instructed by Garlicke & Bousfield Inc.
Counsel for
the Respondent
:
Adv R J
Seggie SC
Instructed by Venn, Nemeth & Hart Inc.
[1]
Moosa & Cassim NNO v Community Development
Board
1990 (3) SA 175
(A) 180 H-J.
[2]
1999 (4) SA 947
(SCA) at para [11].
[3]
In
Mall (Cape) (Pty)
Ltd v Merino Ko-Operasie Beperk
1957
(2) SA 347
(C) at 351G-352B.
[4]
per Pickering J in
Gcali
NO & Another v MEC for Housing & Local Government, Eastern
Cape
1996 (4) SA 456
(Tk SC) at 462F.
This application was dealt with prior to the operation of the
Local
Government Transition Act, No. 209 of 1993
.
[5]
Per Watermeyer J in
De
Villiers & Others v Beaufort West Municipality
1924 CPD 501
at 504.
[6]
Afric Oil (Pty) Ltd v Ramadaan Investments CC
2004 (1) SA 35
(N) at 38J-39A.
[7]
See footnote 2 supra.
[8]
This has occasioned much debate over the
requisite degree of proof required on this point. See eg.
Tattersall
& Another v Nedcor Bank Ltd
[1995] ZASCA 30
;
1995
(3) SA 222
(A) at 228E-229A;
Cambridge
Plan AG & Another v Moore & Others
1987 (4) SA 821
(D).
[9]
2004 (3) SA 615
(SCA) at 624, para [19], per
Streicher JA.
[10]
At 705D-H
[11]
2005 (4) SA 199
(SCA) at 206, paras [14]-[16]
[12]
1998 (4) SA 935
(Tk) at 950I-951D
[13]
1990 (3) SA 425
(E) at 436F-H
[14]
Per Tindall JA in
Barrett
NO v Macquet
1947 (2) SA 1001
(A) at
1012.
[15]
My emphasis.
[16]
Eskom
case at
705H.
[17]
per Watermeyer J in
Mall
(Cape) (Pty) Ltd v Merino Ko-Operasie Beperk
1957 (2) SA 347
(C) at 351G-352B.
[18]
2006 (1) SA 203
(CC)
[19]
Para [18], page 211
[20]
Fedsure Life Assurance Ltd & Others v
Greater Johannesburg Transitional Metropolitan Council & Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at 394f, para [41]. This addresses the
situation under the Interim Constitution but the rationale applies
equally to the
functioning of municipal councils under the
Constitution. See also
City of Cape
Town and Another v Robertson and Another
[2004] ZACC 21
;
2005 (2) SA 323
(CC) at 350, para 60.
[21]
Klipriver Licensing Board v Ebrahim
1911 AD 458
at 462
[22]
Rondalia Assurance Corporation of SA Ltd v
Page & Others
1975 (1) SA 708
(A)
720C-D
[23]
At p 209 D-E
[24]
Alexander & Others v Boksburg Municipality
& Jones
1908 TS 413
at 419