About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2017
>>
[2017] ZALCCT 55
|
|
Magodongo v Khara Hais Municipality and Others (C261/17, C756/16) [2017] ZALCCT 55; (2018) 39 ILJ 406 (LC) (14 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NUMBER: C 261/17 and C 756/16
Reportable
In
the matter between:
Siphiwe
MAGODONGO
Applicant
and
//KHARA
HAIS
MUNICIPALITY
First respondent
GERALD
JACOBS N.O.
Second respondent
SALGBC
Third
respondent
Heard:
2 November 2017
Delivered:
14 November 2017
SUMMARY:
Interlocutory application – rule 11 – points
in
limine
raised in context of review application with regard to
authority of deponent to founding affidavit and whether affidavit
properly
deposed to.
JUDGMENT
STEENKAMP
J:
Introduction
[1]
This interlocutory application arises in somewhat unusual
circumstances. The applicant, Mr Siphiwe Magodongo, was dismissed
by
the first respondent, //Khara Hais Municipality, in Upington. He
referred an unfair dismissal dispute to the South African Local
Government Bargaining Council (the third respondent). Conciliation
failed. He referred it to arbitration. The arbitrator, Mr Gerald
Jacobs (the second respondent), found his dismissal to be unfair and
ordered the Municipality to reinstate him. The Municipality
brought
an application to review that arbitration award under case number
C756/2016 in this Court.
[2]
In the review application, Mr Magodongo is represented by his trade
union, SAMWU. The union instructed Maenetja attorneys to
act on his
behalf. In turn, they briefed counsel.
[3]
SAMWU raised a point
in limine
that the Municipality had
unduly delayed the review application and that it should be dismissed
for that reason alone. Subsequently,
Mr Magodongo – on his own
accord and without the assistance of his union, attorneys or counsel
– launched an application
in terms of rule 11 of the Rules of
this Court under case number C 261/2017. In that application, he
raised two further preliminary
points:
3.1 The
founding affidavit to the review application was not properly deposed
to; and
3.2 The
decision to launch the review application was not that of the
Municipal Council (i.e. the
Municipality did not have the requisite
authority to launch the review).
[4]
Both matters – the review application and the rule 11
application -- were set down to be heard on 2 November 2017.
The
events of 2 November 2017
[5]
When the two matters were called on 2 November 2017, counsel for the
Municipality (Mr
Venter
) and for SAMWU (Mr
Eastes
)
informed the Court that they had reached agreement on the further
conduct of the matter. Mr Magodongo was present in Court. He
indicated his consent to the draft order proposed by counsel. The
Court accordingly made the following order by agreement in case
number C 756/2016:
“
1. The review application
under case number C 756/16 is struck from the roll.
2. The applicant must serve an
application for reinstatement of the matter within 15 days of the
order.
3. The first respondent will answer to
the abovementioned application in terms of the rules of court.
4. Costs are reserved.”
[6]
Mr Magodongo, however, persisted in his application in terms of rule
11 to have the other two preliminary issues decided upon.
His union,
attorneys and counsel had no instructions in that regard. He
proceeded to argue those two points; Mr
Venter
responded on
behalf of the Municipality; and both parties submitted further
written heads of argument.
[7]
I will now deal with each of the two preliminary points, apart from
the issue of undue delay, which is to be heard (by agreement)
together with the review application, should the application to
dismiss the review on these two preliminary points be unsuccessful.
Founding
affidavit not deposed to?
[8]
The deponent to the founding affidavit is Mr Dalixolo Ngxanga, the
then municipal manager. The employee has raised the point
that he did
not properly depose to the affidavit.
[9]
The deponent initialled each page of the affidavit, including the
last page. But he did not append his full signature to the
last page.
On that page, a commissioner of oaths affixed a SAPS stamp dated 9
November 2016 and certified that:
“
I certify that this affidavit
has been sworn to and signed before me at Upington on this 9
th
day of November 2016 by the abovementioned deponent who declared that
he is acquainted with the contents of the affidavit and understands
same, that he has no objection to taking the prescribed oath and
further, that he considers the said oath as binding on his
conscience,
which oath was properly taken by me, as required by law.”
[10]
The convulated language aside,
the commissioner of oaths clearly applied the relevant regulations.
The Regulations governing the
administering of an oath or
affirmation
[1]
read in relevant part:
“
1. (1) An oath is administered
by causing the deponent to utter the following words: "I swear
that the contents of this declaration
are true, so help me God".
2. (1) Before a commissioner of oaths
administers to any person the oath or affirmation prescribed by
regulation 1 he shall ask
the deponent –
(a) whether he knows and understands
the contents of the declaration;
(b) whether he has any objection to
taking the prescribed oath; and
(c) whether he considers the
prescribed oath to be binding on his conscience.
(2) If the deponent acknowledges that
he knows and understands the contents of the declaration and informs
the commissioner of oaths
that he does not have any objection to
taking the oath and that he considers it to be binding on his
conscience the commissioner
of oaths shall administer the oath
prescribed by regulation 1(1).
3. (1) The deponent shall sign the
declaration in the presence of the commissioner of oaths.
(2) If the deponent cannot write he
shall in the presence of the commissioner of oaths affix his mark at
the foot of the declaration:
Provided that if the commissioner of
oaths has any doubt as to the deponent's inability to write he shall
require such inability
to be certified at the foot of the declaration
by some other trustworthy person.
4. (1) Below the deponent's signature
or mark the commissioner of oaths shall certify that the deponent has
acknowledged that he
knows and understands the contents of the
declaration and he shall state the manner, place and date of taking
the declaration.
(2) The commissioner of oaths shall –
(a) sign the declaration and print his
full name and business address below his signature; and
(b) state his designation and the area
for which he holds his appointment or the office held by him if he
holds his appointment
ex officio.”
[11]
In this case, the commissioner has stated that he had asked the
deponent
(a)
whether he knows and understands the contents of the declaration;
(b)
whether he has any objection to taking the prescribed oath; and
(c)
whether he considers the prescribed oath to be binding on his
conscience.
[12]
It appears that the affidavit complies with regulations 1 and 2. Does
it comply with regulation 3, i.e. did the deponent “sign
the
declaration in the presence of the commissioner of oaths”?
[13]
The commissioner says that he did. The only question is whether the
deponent’s initials are sufficient to constitute
him signing
the declaration.
In
Cape Sheet Metal Works (Pty)
Ltd v J J Calitz Builder (Pty) Ltd
[2]
the court held that the provisions of the Regulation then in force
are not peremptory:
“
Dit moet aanvaar word dat die
bepaalde voorskrif waaroor dit hier gaan nie gebiedend is nie maar
slegs aanwysend…; dat nie-nakoming
van die voorskrif ‘n
beweerde beëdigde verklaring nie
per se
vernietig nie end
at, afhangende van die aard van die nie-nakoming en omstandighede van
die geval, ‘n Hof ‘n diskresie
het om die verklaring òf
as waardeloos te beskou òf as beëdigde verklaring te
erken.”
And
in
S v Kahn
[3]
the court stated that it has the discretion to refuse to receive an
affidavit attested otherwise than in accordance with the regulations
depending upon whether
substantial
compliance
with the
regulations has been proved or not.
[14]
In this case, I am satisfied
that there has been substantial compliance with the Regulations. The
deponent signed the declaration
in the presence of the Commissioner
who had administered the oath. And in
Harpur
NO v Govindamall
[4]
the SCA accepted, in the context of a disputed will, that “the
rationale for recognizing initials as a signature is that
they are,
or are in the nature of, a mark.”
[15]
Mr Magodongo also referred the
Court to
ABSA Bank Ltd v
Botha NO
[5]
.
In that case, Kathree-Setiloane J confirmed
[6]
that, “subject to whether there has been substantial compliance
with the Regulations, the court has a discretion to refuse
an
affidavit which does not comply with the Regulations.” On the
facts of that case, the Court held that the commissioner’s
certification could not be relied upon as he had incorrectly
identified a female deponent as “he”. In those
circumstances,
the Court was not prepared to give effect to the
“presumption of regularity” for purposes of assuming that
the declaration
was sworn to and signed in the presence of the
commissioner of oaths. But in the case before me it is clear that Mr
Ngxanga did
sign (albeit by way of his initials) in the presence of
the commissioner of oaths. There has been substantial compliance and
I
exercise my discretion in favour of the presumption of regularity.
[16]
The only remaining technical
issue is that the deponent affixed his initials below the
commissioner’s signature, whereas Regulation
4(1) states:
[7]
“
Below
the deponent's
signature or mark the commissioner of oaths shall certify that the
deponent has acknowledged that he knows and understands
the contents
of the declaration and he shall state the manner, place and date of
taking the declaration.”
[17]
To interpret the provision literally would, in my view, elevate form
over substance. The deponent initialled each page of the
affidavit,
including the last one. There is nothing to suggest that he did not
do so in the evidence of the commissioner and that
the commissioner
did not administer the oath. The fact that Mr Ngxanga did sign it by
way of his initials in the presence of the
commissioner and after
having taken the oath, is not disputed. It would serve no purpose to
declare the affidavit a nullity merely
because he affixed his
signature (or initials or mark) below, rather than above, that of the
commissioner in whose presence he
did so.
[18]
I am satisfied that there has been substantial compliance with the
Regulations. The founding affidavit is allowed into evidence.
Was
the Municipality authorised to launch the review application?
[19]
The remaining preliminary point – other than the issue of undue
delay, which will, by agreement, be decided if and when
the review
application is heard – is that of the Municipality’s
authority to launch the review application. Mr Magodongo
has argued
that the municipal manager who deposed to the founding affidavit did
not have the authority to give those instructions.
It is common cause
that the Municipality did not place a resolution to that effect
before Court; Mr Ngxanga, the municipal manager,
says in his
affidavit that he is
ex lege
entitled to depose to this
affidavit as I am the accounting officer of the [Municipality].”
[20]
Mr
Venter
countered that the municipal manager was, at that
time, delegated with powers to act on behalf of the municipality.
[21]
Section 59 of the Municipal
Systems Act
[8]
reads as follows:
“
59. Delegations. –
(1)
A municipal council must develop a system of delegation that will
maximize 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;
(b)
instruct any such political structure, political office bearer,
councillor, or staff member to perform any of the municipality’s
duties; and
(c)
withdraw any delegation or instruction.
[22]
Section 55 of the Systems Act reads as follows:
“
55. Municipal managers.
– (1) As head of administration the municipal manager of a
municipality is, subject to the policy directions of the municipal
council, responsible and accountable for-
…
(f) the management, effective
utilisation and training of staff;
(g) the maintenance of discipline of
staff;
(h) the promotion of sound labour
relations and compliance by the municipality with applicable labour
legislation;”
[23]
In one of the many cases
involving the benighted Maquassi Hills Local Municipality, this Court
has found that it is not a requirement
that the Municipal Council
must take a written resolution that a municipal manager may depose to
an affidavit.
[9]
In that judgment the Court also referred to the decision of the full
bench in
ANC Umvoti Council
Caucus v Umvoti Municipality.
[10]
Mr Magodongo also cited the
Umvoti
judgment in his argument; but insofar as the question of deposing to
the affidavit goes, it helps rather than hinders him. In that
case,
as in
Maquassi Hills
,
it was held that no resolution is needed for a municipal manager to
depose to an affidavit. The further question – whether
a
separate resolution was nevertheless necessary in terms of the
Systems Act to delegate the authority to litigate to the municipal
manager – still needs to be answered in the case before me. And
in
Umvoti
,
it was held that it was necessary for the council to have delegated
the power to institute legal proceedings to the municipal
manager in
writing; only absent such a delegation was a council resolution
required to empower the official to institute court
proceedings on
behalf of the municipality.
[24]
Did the municipal manager have such delegated authority in this case,
even absent a resolution by the council? Mr
Venter
argued that
ex lege
he did, by virtue of the provisions of the Systems Act
quoted above; but the Municipality did not place any delegation in
writing
before the Court, other than the provisions of the Act itself
(and other national legislation pertaining to municipalities).
[25]
The SCA considered – but
did not decide – the necessity of a council resolution to
institute or defend legal proceedings
in
Manana
v King Sabata Dalindyebo Municipality.
[11]
In that case, the municipal manager purported to oppose the execution
of a resolution by the council relating to the upgrading
of a post.
Nugent JA commented – and his comments appear to me to be
obiter
--:
“
There is no resolution of the
municipal council authorising the opposition. Ms Zitumane [the
municipal manager] relies instead upon
a general delegation by the
municipal manager to institute and defend legal proceedings. It is
questionable whether that delegation
is to be construed as
authorising the municipal manager to challenge the validity of a
resolution of the municipal council itself
but we need not decide
that question. She has purported to oppose the proceedings in the
name of the municipality and I think the
municipality must pay the
costs.”
[26]
In the light of those comments, it seems to me that Nugent JA
accepted – at least in deciding the issue of costs –
that
the municipal manager could act on behalf of the municipality without
the need for a further resolution. But in that case,
there was a
“general delegation” placed before the court; in this
case, despite the challenge by Mr Magodongo, there
was not.
[27]
In
Kouga
Municipality v S A Local Government Bargaining Council
[12]
the court accepted that the municipal manager was properly delegated
to institute proceedings on behalf of the municipality, even
without
a specific council resolution to that effect, but not that he had
sub-delegated that authority to his subordinates.
[28]
The LAC accepted in
SAMWU
v Kannaland Municipality
[13]
that a municipal manager has the power to initiate a retrenchment
exercise; however, it did not deal with the question whether
the
municipal manager may institute legal proceedings without a council
resolution.
[29]
The municipal manager is the
accounting officer of a municipality.
[14]
And the Constitutional Court has termed a municipal manager “a
key structure of a municipality and not merely a personnel
appointment as contemplated in section 160(1)(d) of the
Constitution”.
[15]
A municipal manager must discharge his or her duties without
obstruction from a Municipal Council or its office bearers.
[16]
But does that include the power to institute legal proceedings
without a council resolution?
[30]
There is at least one decision
of the High Court that held – in the context of the application
of building regulations in
terms of s 55(1)(p) of the Systems Act –
that the municipal manager could not. Mr Magodongo relied in this
regard on
Matjhabeng Local
Municipality v Njilo
[17]
.
In that case the court held:
“
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.”
[31]
In this case, the Municipality has placed no evidence before the
Court that it has delegated the power –
in writing
–
to the municipal manager to institute proceedings on its behalf.
Returning to the judgment in
Umvoti
, then, I am satisfied
that, as was stated in this case, the municipal manager did not need
a council resolution to depose to the
founding affidavit. But the
question of authorisation to initiate the review proceedings goes
further. There was no council resolution
to that effect. In
Umvoti
,
the court held that, absent such a resolution, the municipal manager
had to satisfy the court of a delegation in writing. But
when Mr
Magodongo squarely raised the issue, the Municipality simply replied
by stating that he has the authority
ex lege
.
[32]
In summary, the Municipality has not placed anything before the Court
to show that, absent a council resolution, the Municipality
has
delegated the power to institute the review application in case
number C 756/2016. And even though I accept that, as in
Maquassie
Hills
, the municipal manager had the authority to depose to the
founding affidavit, I am not persuaded that the Council had delegated
the authority to institute review proceedings to him.
Conclusion
[33]
Given my decision on the second point
in limine
, the
application for review must be dismissed.
[34]
Mr Magodongo appeared for himself in this application in terms of
rule 11 (under case number 261/17). In the review application
(C
756/16) he was represented by his trade union, SAMWU. There is an
ongoing relationship between the union and the Municipality.
And the
upshot of the dismissal of the review appilicaiton is that Mr
Magodongo is still employed by the Municipality. In law and
fairness
a costs award is not warranted.
[35]
The effect of the judgment is that Mr Magodongo must return to work.
In terms of the arbitration award he had to do so by 1
November 2016.
I intend to order that he now does so by 4 December 2017, just short
of a month hence. That will give the Municipality
enough time to make
the necessary arrangements. It goes without saying that he has to be
paid retrospectively to the date of dismissal,
i.e. 8 December 2014.
Order
The
application for review in case number C 756/2016 is dismissed.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person.
FIRST RESPONDENT:
P
Venter
Instructed by Adri Hechter.
[1]
GN No R1648
of 21 July 1972, amended by GNR 1648 of 19 August 1977, GNR 1428 of
11 July 1980 and GNR 774 of 23 April 1982.
[2]
1981 (1) SA
697
(O) at 699B.
[3]
1963 (4) SA 897
(A) at 900C.
[4]
1993 (4) SA 751 (AD); [1993] 2 All SA 582 (A).
[5]
2013 (5) SA
563 (GNP).
[6]
At par 8.
[7]
My
underlining.
[8]
Local
Government: Municipal Systems Act (Act 32 of 2000).
[9]
Lebu v Maquasi Hills Local
Municipality
(1)
(2012) 33
ILJ
642 (LC).
[10]
2010 (3) SA
31 (KZP).
[11]
(2011) 32
ILJ
581
(SCA) par 25.
[12]
(2010) 31
ILJ
1211 (LC) par 23.
[13]
(2010) 31
ILJ
1819
(LAC) par 56-57.
[14]
Section 82(1) of the Municipal Structures Act and section 60 of the
Municipal Finance Management Act;
Executive
Council of the Western Cape v Minister of Provincial Affairs and
Constitutional Development
(1999) 2 BCLR 1360
(CC) par 107.
[15]
Executive Council of the
Western Cape v Minister of Provincial Affairs and Constitutional
Development
(1999) 2 BCLR
1360
(CC) par 109.
[16]
Municipal Finance Management Act, section 76.
[17]
(2014) ZAFSHC 219.