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[2013] ZALCPE 24
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Lukhanji Municipality v South African Local Government Bargaining Council (SALGBC) (P 314/09) [2013] ZALCPE 24 (12 December 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P 314/09
DATE:
12 DECEMBER 2013
In
the matter between:
LUKHANJI
MUNICIPALITY
...................................................................................................
Applicant
And
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
(SALGBC)
...................................................................
First
Respondent
COMMISSIONER
NCETEZO
N.O
..................................................................
Second
Respondent
SOUTH
AFRICAN MUNICIPALITY WORKERS
UNION
obo SHEPERED
MJOBO
......................................................................
Third
Respondent
Heard: 15
November 2012
Delivered: 12
December 2013
Summary: When
the authority of a municipal employee to institute and presecute a
review application on behalf of a municipality
is challenged, failure
to provide the necessary proof will lead to the dismissal of the
application for lack of the required authority.
Review
in terms of section 145 of the LRA-Dismissal for misconduct.
JUDGMENT
LALLIE,
J
[1] This
is an application to review an arbitration award of the second
respondent (the arbitrator) in which he found the individual
third
respondent’s (Mjobo’s) dismissal both substantively and
procedurally unfair and ordered his reinstatement and
payment of R20
000.00 which is equivalent to his five months’ remuneration.
The application is opposed by the third respondent.
Factual
Background
[2]
Mjobo was employed by the applicant as a clerk at its traffic
department from March 1986. Pursuant to an incident involving
Mjobo
and his supervisor Mfamana, a disciplinary inquiry into acts of
misconduct was instituted against Mjobo. He faced charges
of being at
work while under the influence of alcohol and assaulting his
supervisor. He was found guilty of both charges and dismissed
on 20
December 2008. The third respondent challenged Mjobo’s
dismissal at the first respondent where the arbitrator issued
the
arbitration award which is the subject matter of the current
application.
Locus
standi
[3] In
the opposing papers, the third respondent denied that Micheal
Thembile Ngxobongwana (Ngxobongwana) who attested to the founding
and
supplementary affidavit had the necessary locus standi to bring this
application. Mjobo submitted that the applicant’s
council did
not pass a resolution authorising the launching of the present review
proceedings. Further, no decision or resolution
of the applicant
council was passed authorising Ngxobongwana to launch this review
application and depose to any affidavit for
purposes of prosecuting
it. The applicant’s response to the challenge on Ngxobongwana’s
locus standi was that the authority
to institute legal proceedings
rests with administration and not the council in terms of the
Municipal Systems Act 32 of 2000 (the
MSA). It argued that the third
respondent’s submissions are therefore ill-founded.
[4]
Section 151 (2) of the Constitution of the Republic of South Africa
Act 108 of 1996 (the Constitution) confers the executive
and
legislative authority of a municipality on its Municipal Council. In
terms of section 2(d) of the MSA, a municipality has a
separate legal
personality. It can, therefore sue and be sued. The Municipal Manager
is the head of administration of a municipality
and its accounting
officer. Section 59 (1) (b) read with (2) (b) of the MSA grants the
Municipal Council authority to delegate
power in writing. Emphasising
the necessity of the existence of proof that a municipal employee has
the necessary authority to
act on behalf of the municipal, the court
in Kouga Municipality v SA Local Government Bargaining Council and
Others relied on
the following dictum in Pretoria City Council v
Meerlust Investments (Pty) Ltd:
‘
[S]ince
an artificial person, unlike an individual, can only function through
its agents, and can only take decisions by the passing
of resolutions
in the manner prescribed by its constitution, less reason exists to
assume, from the mere fact that proceedings
have been brought in its
name, that those proceedings have in fact been authorised by the
artificial person concerned. In order
to discharge the above
mentioned onus, the practitioner ought to have placed before this
Court an appropriately worded resolution
of the Council.’
[5] In
Ganes and Another v Telecom Namibia Ltd, it was held that the
institution and prosecution of proceedings must be authorised.
It is,
therefore, necessary for the deponent to the founding affidavit to
allege that he or she has the necessary authority to
institute and
prosecute motion proceedings.
[6] In
the answering affidavit the third respondent stated that the
applicant’s council passed no resolution authorizing the
launching of the current application. He added that no resolution was
passed by the applicant’s council authorising Ngxobonwana
to
depose to any affidavit made and filed in support of this
application. The applicant dealt with the issue in its heads of
argument
by submitting that the challenge to Ngxobongwana’s
locus standi is ill-founded as authority to institute legal
proceedings
rests with the administration and not the Council in
terms of the MSA.
[7] The
applicant’s argument that in terms of the MSA the authority to
institute legal proceedings rests with the administration
and not the
council is not completely correct. The answer to the question whether
Ngxobongwana had the necessary authority to move
and prosecute the
present application lies firstly in section 109 (2) of the MSA which
provides as follows:
‘
A
municipality may compromise or compound any action, claim or
proceedings, and may submit to arbitration any matter other than
a
matter involving a decision on its status, powers or duties or the
validity of its action or by-laws.’
In
addition section 59 of the MSA makes it clear that the administration
can exercise the authority to litigate when it has been
delegated to
it by the Municipal Council. The relevant parts of section 59 for
purposes of this judgment are:
‘
59(1) A
municipal council must develop a system of delegation that will
maximise administrative and operational efficiency and provide
for
adequate checks and balances, and, in accordance with that system
may-
(a)
Delegate appropriate powers, excluding a power mentioned in section
160 (2) of the Constitution and the power to set tariffs,
to decide
to enter into a service delivery agreement in terms of section 76 (b)
and to approve or amend the municipality’s
integrated
development plan, to any of the municipality’s other political
structures, political office bearers, councillors,
or staff members;
(2) A
delegation or instruction in terms of subsection (1)-
(b) Must
be in writing;
(4) any
delegation or sub-delegation to a staff member of a power conferred
on a municipal manger must be approved by the municipal
council in
accordance with the system of delegation referred to in subsection
(1).’
[8] As a
staff member of the applicant Ngxobongwana should have had the power
to institute and prosecute the present application
delegated to him
in writing. In both the founding and supplementary affidavits he does
not disclose the basis for alleging to be
authorised to launch this
application. When the third respondent challenged Ngxongwana’s
authority there was a duty on the
applicant to prove it. Absent proof
that Ngxongwana was duly authorised by the applicant to institute and
prosecute the present
review application the point in limine raised
by the third respondent must be upheld.
[9] I
could find no reason for costs not to follow the result.
[10] In
the premises, the following order is made:
10.1 The
point in limine is upheld.
10.2 The
application for review is dismissed with costs.
LALLIE,
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate Grobler
Instructed
by: Micheal Randell Attorneys
For
the first Respondent: Advocate Simoyi
Instructed
by: Mlonyeni & Lesele Inc