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[2018] ZALCJHB 457
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Rudman v Maquassi Hills Local Municipality and Others (J3495/18) [2018] ZALCJHB 457 (24 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable/Reportable
Case
No: J3495/18
In
the matter between:
JANET
RUDMAN Applicant
and
MAQUASSI
HILLS LOCAL MINICIPALITY
First Respondent
MOTHUPI
MOKGATLA
N.O
Second
Respondent
LENTIKILE
JOHANNES MOGOEMANG
Third Respondent
Heard:11
OCTOBER 2018
Delivered:
24 OCTOBER 2018
Summary:
Urgent Application - Affidavit in support of urgent application has
to be considered in its entirety in assessing requirements
of urgency
- Section 139(1) of the Constitution - Section 54A of the Local
Government: Municipality System Act – Appointment
of and role
of Municipal Manager - Local Sphere of government - Official
appointed i.t.o ss 139(1)(b) of the Constitution has not
the same
powers as an administrator appointed in terms of ss 139(1)(c) of the
constitution – R v Blom principle.
JUDGMENT
MABASO,
AJ:
Parties
[1]
The applicant is Ms Janet Rudman (the applicant), the first
respondent is Maquassi
Hills Local Municipality (the Municipality),
the second respondent is Mr Mothupi Mokgatla
N.O
(the
Administrator), and the third respondent is Mr Lentikile Jonannes
Mogoemang (Current Acting Municipal Manager).
Background
facts
[2]
The applicant filed an urgent application in terms of Rule 8 of the
rules of this
Court, seeking a declaratory order in the following
terms:
2.1
Declaring the termination of her appointment as an acting Municipal
Manager of the first respondent unlawful
and/or invalid therefore
null and void and setting same aside,
2.2
Declaring the appointment of the third respondent as an acting
Municipal Manager be declared to be unlawful
and or invalid therefore
null and void and setting same aside.
2.3
Further that the respondents be ordered to abide by the resolution
taken by the Municipal Council of the first
respondent during the
special council meeting No: 10/18 held on 12 September 2018, and
costs order in the event of opposition.
The
application is opposed by the first to third respondents.
Urgency
[3]
In making a case for urgency, the applicant
inter alia,
avers
that due to the withdrawal of her appointment, there is confusion
within the Council as majority of the Council members persist
that
her appointment was lawful and that she must perform the functions as
Municipal Manager and adhere to the instructions as
per the
resolutions of the Council. On the other hand, the Administrator put
pressure on the administration to accept and acknowledge
the
appointment of the Current Acting Municipal Manager. These
conflicting situations have brought uncertainty in that the
administration
is unable to establish who is the accounting officer
in the Municipality, so argued the applicant.
[4]
She further submits that there have been allegations of violence and
intimidation
following the termination of her appointment on 26
September 2018 and this Court’s attention is drawn on the
application
before the North West High Court, Mahikeng. On the other
hand, the respondents submit that this matter is not urgent as the
applicant
should have approached the statutory dispute resolution
forum if she believes that there is a violation of her rights within
the
employment sphere. The respondents further aver that the grounds
for urgency as set out by the applicant under paragraphs 8.1 to
8.17,
do not justify urgency.
[5]
Rule 8 (2) of the rules of this Court provides that, an affidavit in
support of an
application for urgent relief must state the reasons
for the urgency; why urgent relief is necessary and the reasons why
the requirements
of the rules were not complied with. However, each
case has to be decided based on its own merits by a presiding judge
who is called
upon to decide as to whether a matter is urgent or not.
Such a judge will have to use his/her own discretion. As indicated,
what
is required is that an applicant should set out the reasons for
the urgency and must show an absence of substantial redress if the
matter is not heard as a matter of urgency. I opine that what is
essential in this matter, is the uncertainty that has been created
within the community in the municipality as a result of the
uncertainty of who the accounting officer is, and the period of the
applicant’s appointment as per the resolution of the Council.
[6]
I find the following passage, in the matter of
Sikwe
v S A Mutual Fire and General Insurance
[1]
,
relevant in explaining as to what
inter
alia
should guide presiding officers on the considerations to be made when
deciding on the issue of urgency:
‘
It does not follow
that an application is necessarily defective if the form referred to
in the Rule is not strictly adhered to.
In my opinion, it is the
substance of the affidavit, and not its form, which will weigh with a
Court; if an affidavit sets out
facts upon which a Court can decide
that an applicant is entitled to relief in terms of the sub-rule, the
Court will entertain
the application. If the only reasonable
inference from the facts set out in the affidavit is that the matter
is one of urgency,
then an applicant will have complied with the
requirements of the sub-rule, even though he does not make a specific
averment that
it is urgent.’
[7]
Considering the founding affidavit in its entirety, for example, the
fact that the
resolution by the Council to appoint the applicant to
act as a Municipal Manager for a period of three months will expire
in November
2018. Further, that referring a dispute to the Bargaining
Council would have the effect that it would have to be conciliated
and
thereafter arbitrated if it is not resolved during the former
process and that it could take more than three months to finalise
the
dispute. By that time the uncertainty in the municipality might have
escalated to further violence. On this score, I conclude
that the
matter is urgent, and no prejudice would be suffered by the
respondents, but the applicant might suffer prejudice as she
will
remain with a question of whether her removal was in terms of the law
or not.
Salient
points
[8]
The applicant is employed by the municipality as Divisional Head:
Administration.
As a result of administration and political crisis
within the Municipality, it has been without a Municipal Manager
since 26 July
2018, and with effect from 8 August 2018 without
several “section 56 managers” (the Directors).
[9]
Following the findings by the Department of Local Government and
Human Settlements,
of serious maladministration, poor governance and
poor financial administration which has been affecting service
delivery in the
Municipality, on 22 August 2018 the Bakone Bophirima
Provincial Executive Council (the PEC) resolved to appoint an
administrator
and an intervention team in five identified
municipalities, the first respondent is one of those municipalities.
This was in terms
of section 139(1) of Act 108 of 1996.
[2]
This resolution was to be effective from 1 September 2018 at the
Municipality. It provides
inter
alia,
that:
‘
4.
Institutional Arrangements Between the Administrator and Municipal
Officials (Administration and the Municipal Council)
(a)…
(b)…
(c)
The Municipal Council and all its functions, including such
structures as the Mayoral Committee and the Municipal Public
Accounts
Committee, must obligatorily continue to function as normal, and the
decisions and resolutions thereof must all be approved
by the
Administrator before the implementation.
(d)
…’
Clearly, this permits the
Municipal Council to continue with its functions, however, if
resolutions are taken, the Administrator
must approve them. Further,
this resolution does not state as to when and how the approval should
be executed.
[10]
The Administrator was appointed on 17 September 2018. Prior to the
appointment, a Special Council
Meeting by the Municipal Council
was held on 12 September 2018. Although some of the councillors were
not in attendance,
including the Municipal Mayor, a motion was passed
in terms of which the Applicant was to be appointed as an acting
Municipal Manager,
and the Municipal Mayor was to sign the
appointment letter. In case the Mayor was not available to sign
the letter,
then Councillor Mokgabi was to sign it.
[3]
Following this resolution, the Mayor refused to sign the appointment
letter which was later signed by Councillor Mokgabi
[11]
On 14 September 2018, the applicant received a memorandum from the
Municipal Mayor advising her
inter alia
, that her appointment
was invalid and that the municipality was placed under intervention
in terms of section 139(1) (b) of the
Constitution, she was further
advised that she should desist from assuming any responsibilities of
an acting Municipal Manager.
[12]
On 19 September 2018, the Administrator was introduced in line with
the PEC’s resolution,
and his appointment was for six months.
On 20 September 2018, there was a meeting that was held between the
executive committee
and the management of the Municipality with the
Auditor General. After this meeting, a letter was written to a
company called Business
Connection signed by both the applicant and
the Administrator in their capacities as acting Municipal Manager and
Administrator.
Five days later, on 26 September 2018, the applicant
received a letter from the Administrator advising her that her
appointment
was being terminated. This letter reads thus:
‘
TERMINATION
LETTER: ACTING MUNICIPAL MANAGER
The above matter bears
reference.
This letter serves to
inform you that your position as an acting municipal manager has been
terminated with immediate effect. This
termination is informed by the
following reasons: -
The Constitution of the
special council meeting which was held on 12 September 2018 was
procedural.
The internal circular No:
01 of 2018 which outlines my roles and responsibilities as an
administrator (which I believe you have
received already)
you have therefore
expected to submit a detailed report of the decisions you have taken
and implemented since you have acted by
no later than 1 October 2018
and of business.’
[13]
Subsequently, the third respondent was appointed as an Acting
Municipal Manager by the Administrator
and the applicant averred that
the incumbent has less experience than hers.
Principles
and application thereof
[14]
Section 2(a) and (b) (i) of the Local Government Municipality Systems
Act (Municipality Systems
Act)
[4]
provides that the Municipality is an organ of state within the sphere
of government which consist of political structures
and
administration of the Municipality. Other spheres of government are
Provincial and National.
[15]
The Municipal Council has powers to employ the person needed to
execute its functions as required
by the Constitution, specifically
section 160(1) (d) reads thus,
‘
May employ
personnel that are necessary for the effective performance of its
functions.’
The
Municipal Council has the rights and duties to govern its initiative
in local government affairs. See section 4 (1) of the Municipality
Systems Act. These provisions give the Municipality its autonomy over
personnel affairs.
[16]
Moreover section 54A (1) of the Municipality Systems Act gives the
Municipal Council the local
public administration powers to appoint a
Municipal Manager or an Acting Municipal Manager. The appointment of
the latter is the
case herein. In the recruitment and appointment of
a Municipal Manager, section 54A does not suggest that either the
National or
Provincial sphere of government are to be involved, but
subsections 54A(7)(a) of the Municipality Systems Act provides
that,
‘
the
municipal Council must, within 14 days, inform the MEC for local
government of
the appointment process and outcome
, as may be
prescribed.’
[17]
Once a Municipal Council has recruited and appointed a Municipal
Manager in contravention of
the provisions of section 54A of the
Municipality System Act, in terms of ss 8(a) of the same Act the MEC
for local government
must within 14 days of receipt of violation
take appropriate steps to enforce compliance by the Municipal
Council, and this
subsection further provides that steps that may be
taken may include “
an
application to court for a declaratory order on the validity of the
appointment, or any other legal action against the municipal
council”.
Subsection
54A(9) of the Municipality Systems Act provides the circumstances
whereby the Minister may be involved.
[5]
[18]
It is trite that legislation is to be interpreted textually,
contextually and purposively. The
phrase “appointment” is
the keyword both in ss 7(a) and (8) of the Municipal Systems Act, as
it is not defined in the
original Act and even the Municipal Systems
Amendment Act
[6]
did not define
this word. To understand its meaning, one has to be guided by the
provisions of subsection 8(a) Municipality System
Act which requires
that if an MEC becomes aware that the appointment is not in line with
the provisions of the Act, he/she may
approach the appropriate court
for a declaratory order on the validity thereof. I conclude that the
appointment means that if the
Municipal Council has appointed such a
municipal manager the MEC for Local government has no powers to
rescind such appointment
unilaterally, but he has to notify the
relevant municipal council if the appointment is not in terms of the
law and if no rectification
is possible then approach court for a
declaratory order.
[19]
Even the Constitution, under section 139(1) (b) does not give the MEC
or Provincial government
powers to withdraw the appointment of a
Municipal Manager unilaterally. The only time when a PEC will have
powers to have total
control of the municipality is where an
administrator has been appointed in terms of the provisions of
section 139(1)(c) of the
Constitution because at that time the
Municipal Council would have been dissolved.
[20]
In casu
, it is common cause between the parties that the
Administrator was not appointed in terms of section 139(1) (c) of the
Constitution.
This subsection reads thus,
’
dissolving the municipal
council and appointing an administrator until the newly elected
municipal council has been declared elected,
if the exceptional
circumstances such step.’
Clearly,
under this subsection, the Municipal Council will not exist because
it would have been dissolved. As stated in paragraph
9 above, the PEC
resolution allowed the Municipal Council to continue with its duties,
but the Administrator was to be an overseer
thereof. Considering
applicable legislation herein, especially the provisions of section
139(1) of the Constitution, it does not
seem to suggest that an
administrator appointed by the PEC will have more powers regarding
the termination of the appointmed Acting
Municipal Manager than the
Municipal Council, the MEC for local government or the Minister.
[7]
[21]
In casu
,
the Administrator was appointed in terms of the provisions of
subsection 139(1) (b) of the Constitution, this subsection does
not
dissolve the Municipal Council, as was correctly found by Tuchten J,
in
Magalakwena
Local Municipality and Another v MEC for Co-Operative
[8]
concluded that
“…
nothing
in section 139(1)(b) gives a province to divest municipality or its
council of its power to take administrative action…”.
[22]
Magalakwena
[9]
’s
authority reaffirms that the principle that the municipality retains
its autonomy
.
Instead
it gives the Provincial Executive Council a right to maintain
essential national standards, prevent the Municipal Council
from
taking unreasonable actions that are detrimental to the interests of
the province as a whole and maintain economic unity.
Its role becomes
that of an overseer.
[23]
The Administrator herein, before 26 September 2018, did not replace
the Municipal Council. The
latter despite being notified of the
PEC resolution, it proceeded to have a Special Council Meeting and
made a resolution for the
appointment of the applicant to the
position of acting Municipal Manager, which such resolution is,
therefore, an administrative
action.
[10]
Mr
Saloojee
,
on behalf of the applicant correctly conceded that the appointment
might have been suspect. Moreover, he submits that considering
that
the Administrator co-signed a letter with the applicant to Business
Connexion dated 20 September 2018, where it shows that
the
Administrator was accepting the appointment of the applicant. I am
inclined to accept the Applicant’s assertion that
indeed the
Administrator’s conduct amounts to approval of her appointment
by the Municipal Council. If the Administrator
did not approve the
appointment of the Applicant, clearly he would not have co-signed the
letter to the Business Connexion.
[24]
Moreover, he would have indicated his disapproval of the applicant’s
appointment before
the meeting with the Auditor-General, taking into
account that the position of a Municipal Manager is a crucial
position as its
functions are equal to that of an accounting officer
and head of the Municipality.
[11]
I agree that the applicant supports this point in the replying
affidavit, although, the respondents submit that the issue of
co-signing
a letter is only mentioned in the replying affidavit, but
the applicant was responding to what is contained in the answering
affidavit, and the letter in question forms part of the founding
affidavit. Taking into account, the principle in
R
v Blom
[12]
where it was held that “
select
a conclusion which seems to be the more natural, or plausible,
conclusion from among several considerable ones, even though
that
conclusion be not the only reasonable one”
.
[13]
I conclude that the circumstances of this case support that the
Administrator approved the appointment of the applicant as the
acting
Municipal Manager.
[25]
The SCA in the
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
[14]
said
’
Until
the Administrator’s approval (and thus also the consequences of
the approval) is set aside by a court in proceedings
for judicial
review it exists in fact and it has legal consequences that cannot
simply be overlooked.
The proper functioning of a modern state would be considerably
compromised if all administrative acts could be given effect to
or
ignored depending upon the view the subject takes of the validity of
the act in question. No doubt it is for this reason that
our law has
always recognised that even an unlawful administrative act is capable
of producing legally valid consequences for so
long as the unlawful
act is not set aside.’
[15]
[26]
Now, taking into account that sections 7 and 8 of Municipality
Systems Act, provides that an
MEC may take necessary steps to enforce
compliance by the Municipal Council with the Act in respect of the
appointment of a Municipal
Manager. I conclude that even though
the appointment of the applicant as an acting Municipal Manager is
suspect, in the way
it was concluded, its timing, taking into account
that there was a resolution that was taken by the PEC, and such
resolution was
communicated to the Council, the appointment could
only be declared by the court of law to be invalid. Considering that
in terms
of the guidelines that were issued to the Administrator by
the PEC it did not state anywhere that the Municipal Council was
dissolved
(139(1) (c) of the Constitution), and the Municipality is
controlled by the Municipal Council maintaining its autonomy and as I
have concluded that the Administrator had confirmed the appointment
of the applicant as the acting Municipal Manager. In
order for
the Administrator to rescind the decision to appoint the applicant,
he should have approached the Municipal Council,
and he and the
Municipal Council would then have powers to withdraw the appointment,
taking into account that the applicant was
acting as a Municipal
Manager. In case the Municipal Council refused to comply with his
approach then he can approach an appropriate
court for a declaratory
order because an administrative action had already been taken and
remain binding until set aside by a court
of law.
[27]
The conclusion above consequentially invalidates the appointment of
the third respondent.
[28]
I make the following order:
Order
1. The
requirements of rule 8 of the rules of this Court are hereby
dispensed with, and the application is
treated as urgent;
2. The
termination of the applicant’s appointment as an acting
Municipal Manager of the First Respondent
by the Administrator is
unlawful and invalid therefore null and void and is set aside;
3.
the First and Second respondents are to abide by the resolution taken
by the Municipal Council of the
first respondent during the special
council meeting No: 10/18 held on 12 September 2018;
4.
The appointment of the Third Respondent as the First Respondent’s
acting Municipal Manager is declared
unlawful and invalid therefore
null and void and is set aside; and
5.
There is no order as to costs.
_______________________
S.
Mabaso
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicants: Adv Saloojee
Instructed
by : Cronje
Attorneys
For
the Respondents: Adv Mkhari SC
Instructed
by :
Kgomo Attorneys
[1]
[1977] 3 All SA 231 (W).
[3]
Ss 54A(1)(b) of Act no. 32 of 2000 which reads thus: The Municipal
Council must appoint –an acting municipal manager under
circumstances and for a period as prescribed.
[4]
Act 32 of 2000.
[5]
“Where an MEC for local government fails to take appropriate
steps referred to in subsection (8), the Minister may take
the steps
contemplated in that subsection
[6]
Act no 7 of 2011
[7]
See also ss (7)(a) to (9) of the Municipal Systems Act.
[8]
[2014] 4 All SA 67 (GP)
[9]
Idid.
[10]
See:
Mlokothi
v Trollip and Others
(193/2017) [2017] ZAECPEHC 43 (5 September 2017).
[11]
City of
Johannesburg Metropolitan Municipality and others v Hlophe and
others
[2015] JOL 32984
(SCA)
,
para 19, underpinned in
Mlokothi’
s
judgment (fn 10 above), where the Court held that: the municipal
manager is the head of administration and the accounting officer
of
a municipality. Subject to the policy directions of the municipal
council, the municipal manager is responsible and accountable
for
the management of the municipality's administration in accordance
with the Systems Act and other legislation applicable to
the
municipality. The municipal manager is also responsible and
accountable for the management of the provision of services
to the
local community in a sustainable and equitable manner.
Moreover, as accounting officer he or she is responsible
and
accountable for all income, expenditure and assets of the
municipality and for the discharge of all its liabilities. The
municipal manager therefore heads the administration of a
municipality and holds its purse. This necessarily means that the
city manager has the power and the duty to ensure that the city
complies with its obligations in terms of a court order. (footnotes
omitted)
[12]
1939
AD 188
at 202-203.Underpinned by the LAC judgment
(Nkomati
Joint Venture v Commission for Conciliation, Mediation and
Arbitration (JA25/2017)
[2018] ZALAC 11
;
[2018] 8 BLLR 773
(LAC),
para 10)
[13]
See:
SATAWU
v TOKISO Others
(2015) 36 ILJ 1841 (LAC), in para 12 and 13.
[14]
[2004] 3 All SA 1 (SCA).
[15]
Ibid at para 26.