About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2024
>>
[2024] ZAECMHC 88
|
|
King Sabatha Dalindyebo Municipality v Bhekezantsi (2088/2024) [2024] ZAECMHC 88 (24 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE NO:2088/2024
REPORTABLE
In the matter between:
KING SABATHA
DALINDYEBO MUNICIPALITY
Applicant
And
NELISA BHEKEZANTSI
Respondent
JUDGMENT
Mhambi AJ
INTRODUCTION
1.
The Applicant instituted motion proceedings against the Respondent,
in the main
is seeking an order in the notice of motion which may be
summarized as follows:
(a) interdicting the
respondent from unlawfully invading the land and building and/or
erecting an illegal structure at ERF 912 Portion
0;
(b) Interdicting the
respondent and anyone who intends to occupy the illegal structure;
(c) The structure erected
and developed by the respondent on ERF 912 Portion 0 to be declared
unlawful; and
(d) That the respondent
be declared to demolish the said illegal building within 10 days from
the court order.
THE PARTIES: -
2.
The Applicant is King Sabatha Dalindyebo Municipality, a municipality
duly established
in terms of the Local Government: Municipal
Structures Act
[1]
. Its principal
place of business is situated at Munitata Building 51, Sutherland
Street, Mthatha. The Applicant will be referred
to hereinafter
as “
the
Municipality
”
.
[2]
3.
The Respondent is Nelisa Bhekezantsi, described as an adult male
person employed
as the law enforcement agent under the South African
Police Services, PRD Building, Sutherland Street, Mthatha.
[3]
THE APPLICATION
4.
The orders sought by the Municipality are opposed by the Respondent.
5.
In the course of the application, there were two interlocutory
applications.
In the first interlocutory application, the
Municipality sought leave to supplement its founding affidavit in the
main application.
In the second interlocutory application, the
Municipality sought for leave to amend its notice of motion.
6.
The Respondent opposed both interlocutory applications However, when
this matter
was heard on 18 October 2024, the Respondent consented to
the orders sought by the Municipality in both interlocutory
applications,
I shall revert to this aspect in due course.
7.
The crux of the matter is that in response to the main application,
the two interlocutory
applications, the Respondent challenged the
authority of the Municipality to institute these proceedings and
further challenged
the authority of Jolwana Mgidlana Attorneys to act
on behalf of the Municipality.
8.
In its challenge, the Respondent delivered to the Municipality’s
attorneys,
a notice in terms of Rule 7(1) of the Uniform Rules of
Court. The notice was served on the Municipality’s
attorneys
on 04 October 2024.
9.
The architecture of Rule 7 has a specific intent. Rule 7(1)
provides as
follows: -
“
POWER
OF ATTORNEY
”
1)
Subject to the provisions of subrules (2) and (3) a power of attorney
to act need not
filed, but the authority of anyone acting on behalf
of the party may, within 10 days after it has come to 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 authorized so to act, and to enable him to do so the
Court
may postpone the hearing of the action or application.
10.
At this stage, it is opposite to mention the grounds elucidated in
the Respondent’s notice
in terms of Rule 7(1).
11.
It appears
ex facie
the Respondent’s notice in terms of
Rule 7(1) that the Respondent sought to be provided with documentary
proof as follows:
-
a)
A Council Resolution by the Municipal Council authorizing the
Municipality as
well as Jolwana Mgidlana Attorneys, to institute the
current proceedings against the Respondent.
b)
A power of attorney by the Municipal Council appointing Jolwana
Mgidlana Attorneys
as the Municipality’s Attorney in the
application.
c)
Proof that Jolwana Mgidlana Attorneys had been properly appointed as
a service
provider by the Municipality in terms of the provisions of
Section 217 of the Constitution, National Treasury Regulations and
Supply
Chain Management Policy of the Municipality.
12.
The Municipality replied to the Rule 7(1) notice by attaching a
letter signed by the Municipality’s
Legal Officer dated 18
December 2023.
13.
It is necessary to indicate that the papers in the main application
were issued on 14 May 2024.
14.
On receipt of the Municipality’s response to its Rule 7(1)
notice, the Respondent raised
a point of law in terms of Rule 6(5)
(d) (iii) of this Court’s Uniform Rules, the Respondent insists
that at the hearing
of the matter it will argue that the Municipality
has not been authorized to institute and prosecute this application,
the Respondent
also raised other issues which are not a concern in
this judgement.
15.
The crystal issue the court is asked to determine is whether the
Municipality has the requisite
authority to institute these
proceedings.
THE
LEGAL NATURE OF THE MUNICIPALITY
16.
It is necessary to emphasize the legal nature of the Municipality.
17.
The legal nature, and the rights and duties of the Municipality are
regulated by Section 2 of
the Local Government, Municipal Systems
Act
[4]
. Section 2 of the
Systems Act provides as follows: -
“
A
MUNICIPALITY”
a)
is an organ of state within the local sphere of government exercising
legislative
and executive authority within the area determined in
terms of the
Local Government Municipal Demarcation Act, 1998
;
b)
Consists of
i)
the political structures and administration of the Municipality, and
ii)
the community of the Municipality
c)
functions in its area in accordance with the political statutory and
other relationships
between its political structures, political
office bearers and administration and its community; and
d)
has a separate legal personality which excludes liability on the part
of its
community for the actions of the Municipality.
18.
On this note, it is necessary to look at the relevant provisions of
the Constitution as far as
it relates to the issue before me.
19.
SECTION 151 OF THE CONSTITUTION PROVIDES THAT: -
(1)
The Local spheres of government consists of Municipalities, which
must be established for
the whole of the territory of the Republic of
South Africa.
(2)
The executive and legislative authority of the Municipality is vested
in its Municipal Council.
[5]
20.
Section 151(2) of the Constitution must be considered together with
Section 160 of the Constitution.
Section 160 clarifies the role
and powers of the Municipal Council as follows: -
1)
A MUNICIPAL COUNCIL
a)
Makes decisions concerning the exercise of all the powers and
performance of all the
functions of the Municipality.
21.
Regard being had be to Section 160(1) (a) of the Constitution, and
Section 2(d) of the Municipal
Structures Act, it is clear that the
Municipality is clothed with a separate legal personality distinct
only from
it’s community
. The Municipality does not have
a legal personality distinct or separate from its Council.
22.
I agree with the reasoning by
Goosen
J, in Nelson Mandela Bay Municipality and Others V Anele Qaba and
Others.
[6]
He reasons as follows:-
“
What
Section 2 of the Systems Act does not contemplate is that ‘a
Municipality’ is a separate incorporated entity to
that of its
‘Council’. Such a notion would, in any event be absurd
since it is the Council in which executive and legislative
power and
authority is vested
.”
23.
Clearly, the Municipality is nothing but the agent of its council.
The Municipality is the
body Corporate that acts as agent of its
principal, that is its council, which in no way is by it‘self a
body Corporate,
however the Constitution vests the Council with
decision making powers, executive and legislative authority.
24.
This is supported by
De
Villiers and Others v Beaufort West Municipality
[7]
,
where Watermeyer J held that: -
“
The
Council therefore by 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,
they act as
agents for the body corporate, the Municipality”.
25.
I agree with the reasoning by
Goosen
J in Nelson Mandela Bay Municipality,
[8]
that
a Municipality acts and performs its functions through the agency of
its Council.
AUTHORITY TO INSTITUTE
LEGAL PROCEEDINGS AND POWER TO DEPOSE TO AN AFFIDAVIT
26.
In
Ganes
and Another V Telkom, Namibia
[9]
,
the Court held that:-
“
It
is irrelevant whether Henke had been authorized to depose to the
founding affidavit. The deponent to an affidavit in motion
proceedings need not to be authorized by the party concerned to
depose to the affidavit. It is the institution of the
proceedings
and the prosecution thereof which must be authorized”.
27.
This position was affirmed in number of authorities, inclusive
of
First Rand Bank Limited V Michael Gary Hazon and Another
[10]
.
28. The applicable remedy
to challenge the authority of the party instituting an action remains
Rule 7(1) of the Uniform Rules of
Court.
29.
The Supreme Court of Appeal in
Unlawful
Occupiers, School Site V City of Johannesburg
[11]
,
referring to the Judgment in
Eskom
v Soweto City Council and Ganes
[12]
,
held
(per Brand JA) that:-
“
The
import of the Judgment in Eskom is that the remedy of the 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.
30.
On this point, I find that the Respondent’s use of Rule 7(1) to
challenge authority of the
Municipality to prosecute these
proceedings is correct in law.
31.
During hearing of this matter, Mr Sihawu, Counsel for the
Municipality, argued that the Respondent’s
Rule 7(1) notice was
filed out of time, with no application for condonation filed. He then
referred to a Judgment in
Donald
Gordon Ericksson V The Hollard Insurance Company Ltd
[13]
.
I am not persuaded to follow the reasoning in that case. The facts of
this case are totally distinguishable from those in Donald.
In
Donald
,
the Applicant objected to the late filing of a notice in terms of
Rule 7(1) by the Respondent. In this case the Applicant
did not
raise an objection of late filing, but simply replied to the notice
dated 08 October 2024. In that way, even if late
filing may be
said to exist, the Municipality itself impliedly consented and agreed
to that late filing. It was improper
for the Municipality to
only raise objections on argument. The Municipality is not entitled
to argue a case it has not made out
on its own papers. I
therefore reject that objection.
32.
The last issue for determination is whether the Municipality’s
reply to the Rule 7(1) notice
is sufficient to satisfy the Court of
its authority to institute these proceedings. The answer to
that is in the negative.
I deal with the reasons below.
33.
The letter signed by the Municipality’s Legal Adviser can never
be sufficient to authorize
the institution of proceedings by the
Municipality. I have already demonstrated that the Municipality acts
through the agency of
Council.
34.
Clearly, without the authority of the Council, in the form of a
Municipal resolution, the Municipality
lacks the power and the
authority to institute these proceedings.
35.
The powers of the Municipal Manager are clearly defined in Section 55
of the Systems Act when
he/she act on behalf of the Municipality,
he/she act on delegated authority in terms of Section 59 of the
Systems Act, in the authority
which vests on the Municipal Council to
sue in the name of the Municipality, but to do that Municipal Manager
needs to act on the
resolution of the Council that gives him the
delegated power to litigate in the name of the Municipality.
36.
Consequently, the Respondent’s challenge of the Municipality’s
authority to pursue
these legal proceedings should succeed.
37.
As I stated earlier, the Municipality in its interlocutory
applications, sought the leave of this
Court to amend its notice of
motion, and to supplement its founding papers. Even though the
Respondent opposed such amendments
sought, at the hearing of this
matter the amendments were sought by consent with the Respondent
withdrawing its objection but seeking
leave to attend to
consequential amendments.
38.
In my view, the basis for the Municipality to seek the leave of the
Court for it’s attempt
to supplement its founding affidavit is
clear, and based on the principle that there are customarily three
sets of affidavits in
motion proceedings. But the Court has a wide
discretion to allow the filing of further affidavits. In this regard
see
James
Brown and Harmer Pty Ltd V Simons
[14]
.
39.
On this aspect,
Goosen
J in Nelson Mandela Bay (supra) refers to Merope Communications Pty
Ltd V Verb Media Pty Ltd
[15]
,
I agree with the reasoning therein.
40.
The court was satisfied that the Municipality had made a case for the
filing of a supplementary
founding affidavit, and further granted,
the Applicant leave to amend its notice of motion. The
Respondent conceded to not
be prejudiced by the intended amendments.
41.
On the basis that the Municipality was the party who sought the
indulgence I deemed it fit to
grant a costs order against the
Municipality. Appropriate orders were granted during the hearing of
this matter.
CONCLUSION
42. In
ANC Umvoti Caucus v Umvoti Municipality,
2009 ZAKZ PHC 47, 2010 3 SA31
, the
court per Govern J held that:
“
Mr.
Gojoo analyzed the relevant legislation and submitted that no
legislation directly authorized the speaker or the manager of
a
municipality to act as an agent of a municipality to launch 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 delegation
must be in writing. Absent such a delegation, a council resolution
was required to empower an official to institute
court proceedings on
its behalf. These submissions are sound.”
43.
Consequently, the Respondent’s challenge in terms of Rule 7(1)
to the Municipal manager’s
authority to institute these
proceedings stands to be upheld.
ORDER
1.
The Applicant is directed to satisfy the Respondent that it has the
requisite
authority to institute these proceedings.
2.
The Application is postponed
sine die
subject to the Applicant
satisfying the Respondent that it has the requisite authority to
institute these proceedings.
3.
The Applicant is directed to pay wasted costs only relating to the
Respondent’s
Rule 7(1) notice on Scale “A” of the
amended Rule 67 A of the Uniform Rules of Court.
4.
The main application is postponed sine die with costs in the cause.
M. MHAMBI
JUDGE OF THE HIGH
COURT(ACTING)
APPEARANCES
Mr. Sihawu:
Counsel for the Applicant
Instructed by:
Jolwana Mgidlana Inc.
No. 19
Park Road
Mthatha
Mr. Mbiko:
Counsel for the Respondent
Instructed by:
M. Zilani Attorneys
Office
No. 19. 5
th
Floor
Sanlam
Building
Mthatha
Date heard:
18 October 2024
Date delivered:
24 October 2024
[1]
Act
117 of 1998
[2]
See
paragraph 5 of the founding affidavit
[3]
See
paragraph 6 of the founding affidavit
[4]
Act
32 of 2000
[5]
The
Constitution of the Republic of South Africa, 1996.
[6]
2022
ALL SA 239
(ECP) at para 26 of the judgment.
[7]
1929
CPD 501
at 504
[8]
Ibid
at para 27-28
[9]
2004
(3) SA 614
[10]
See
Unreported judgment of Southern Gauteng, 2013/47366 at paragraph 26
0f the judgment.
[11]
See
2005 (4) SA 199 (SCA)
[12]
1992
(2) SA 703
(W)
[13]
See
2023 ZAGPN JHC 39, 24 January 2023
[14]
1963
(4) SA 656
at 660 E-G
[15]
at
para 41