REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
CASE NO:030618/2023
In the matter between:
BA-PHALABORWA MUNICIPALITY APPLICANT
and
TIPUPROX (PTY) LTD FIRST RESPONDENT
MM RIP SC N.O. SECOND RESPONDENT
This Judgment was handed down electronically and by circulation to the parties' legal
representatives by way of email and shall be uploaded on caselines. The date for
hand down is deemed to be on 14 March 2025.
2
JUDGMENT
MALI J:
[1] This is an application for an order declaring the arbitration award void, based
on the lapsing of the arbitration. If it is found that the arbitration award is not
void, the applicant seeks to set aside the arbitration award based on the
provisions of section 33 of the Arbitration Act, 42 of 1965 (the Act).
[2] The applicant is a municipality duly established in terms of section 12 of the
Local Government: Municipal Structures Act, 117 of 1998, with its principal
place of business in Limpopo. The first respondent is a company duly
registered and incorporated within the Laws of the Republic, with the
registered address in Pretoria Gauteng. The second respondent is a major
male practising Senior Advocate based in Pretoria, Gauteng.
[3] The first respondent instituted action proceedings in the Polokwane High
Court against the applicant during July 2014 for the payment of amounts
allegedly due in terms of an agreement. The first respondent and the
applicant concluded an arbitration agreement during February 2021. The
second respondent is the Arbitrator.
[4] The first respondent is opposing the application . The first respondent first
raised two points in limine, (i) Non-compliance with Rule 7 due to lack of
Council resolution and (ii) Lack of jurisdiction .
Non -compliance with Rule 7 of the Uniform Rules of Court
[5] Rule 7 reads:
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"7 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 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 satisfied 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 ." [Own emphasis)
[6) The deponent to the founding affidavit is the duly appointed Municipal
Manager. In opposing the point in limine, at paragraph 11 of the replying
affidavit the following is stated:
"11. 1 The applicant has indeed complied with the Rule 7 notice.
11. 2 It is disputed that a council resolution is required."
[7] The averments are as brief as above, the applicant does not take the court
into confidence as to how it has complied with Rule 7 notice. It also does not
state the basis of disputing the requirement of council resolution .
[8] The law pertaining to the Council Resolution to institute legal proceedings
by the Municipality has long been settled in Manana v King Sabata
Oalindyebo Municipality (345/09) [2010] ZASCA 144. At paragraphs 16 and
17 the following is stated:
"[16] A municipal council is not capable in practice of exercising its executive
authority by running the day-to-day affairs of the municipality and it employs
staff to do that on its behalf. In the past it was common for municipal councils
to confer the appropriate authority upon their staff by delegation of all or
some of its executive powers. Such a delegation of power does not ordinarily
divest the delegator of the power to perform the particular function itself As
the authors of De Smith's Judicial Review
express it:
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'[l]t has sometimes been stated that delegation implies a denudation of
authority .... This cannot be accepted as an accurate general proposition. On
the contrary, the general rule is that an authority which delegates its powers
does not divest itself of them .... '
[17) In my views 55(1) is no more than a statutory means of conferring such
power upon municipal managers to attend to the affairs of the municipality
on behalf of the municipal council. There is no basis for construing the
section as simultaneously divesting the municipal council of any of its
executive powers. Indeed, as I have already pointed out, the Constitution
vests all executive authority -which includes the authority to appoint staff -
in the municipal council and legislation is not capable of lawfully divesting it
of that power. To the extent that there might be any ambiguity in the statute
in that respect it must be construed to avoid that result.
[9] The power/s of the Municipal Manager are not being challenged , but the lack
of authority in the form of Council Resolution by the Municipal Manager to
institute legal proceedings . The issue is whether this application is authorised
by Council resolutions and nothing more. From the above, the Municipal
Manager of the Municipality cannot appoint attorneys and authorise litigation
in the absence of a Council Resolution.
[1 O] The applicant has failed to show that the application is authorised by the
Council resolutions . In conclusion the Rule 7 challenge on the lack of
authority of the Municipal Manager to institute the application stands to be
upheld. This issue alone is dispositive of this application . In the result I grant
the following order.
5
ORDER
1. The application is dismissed .
2. The applicant is ordered to pay the costs of this application on a punitive scale
as between attorney and client.
APPEARANCES:
For the Applicant:
Attorneys:
For 1st Respondents :
Attorneys : JUDGE OF THE HIGH COURT
APJ Els SC
apjels@lawcircle .co.za
Adv. N.G Louw
Thomas & Swanepoel Attorneys
louis@tsle gal.co.za
Adv. K Mokwena
kprofessional incorporation@gma il.com
HLM Mamabola Attorneys
hlm@hlmlegal.co .za