Anc Umvoti Council Caucus and Others v Umvoti Municipality

• Jurisdiction: South Africa
• Judge: Tshabalala JP, Swain J and Gorven J
• Judgment Date: 25 September 2009
• Citation: 2010 (3) SA 31 (KZP)
• Docket Number: AR 392/2009
• Hearing Date: 11 September 2009
• Counsel: VI Gajoo SC (with WS Kuboni) for the appellants. RJ Seggie SC for the respondent.
• Court: KwaZulu-Natal High Court, Pietermaritzburg

Gorven J: E

[1] The respondent launched an application seeking a rule nisi with interim relief on an urgent basis. It arose out of conduct which purported to be resolutions taken by the municipal council (the council) of the respondent. The respondent contended that these resolutions were not taken by the council because, at the time they were taken, the council F was not properly constituted.

[2] A rule nisi was issued in the following terms:

'A rule nisi do hereby issue calling upon the Respondents to show cause, if any, at 09h30 on the 7th day of May 2008 why an order should not G be made in the following terms:

(i)

The gathering of councillors of the Applicant which continued to sit and purported to act as a municipal council after the Speaker had left the meeting of the council on 24 April 2008 and until his return to the council chamber was not the council of the said municipality and its resolutions have no force and effect.

(ii)

H The purported removal by the said councillors of Alderman Ngubane as mayor and the appointment of TZ Ngubane in his stead is void and of no force and effect.

(iii)

Alderman PM Ngubane is the mayor of the municipality.

(iv)

The Applicant is ordered to pay the costs of this application, provided that, in the event of any person opposing the granting of this order, then an order will be made that such person or persons I pay the costs occasioned by such opposition, jointly and severally, the one paying the other to be absolved.'

[3] In addition to the first appellant all councillors other than the speaker (the speaker), who deposed to the founding affidavit, were cited as respondents. The second to ninth appellants are those councillors who J opposed the application.

Gorven J

[4] The rule nisi was subsequently confirmed by Gyanda J. In addition A to the confirmation of the rule, the second to ninth appellants were ordered to pay the costs of the application jointly and severally, the one paying the others to be absolved.

[5] Leave was granted by the court a quo to appeal to this court in B relation to the authority of the municipal manager to bring the application, and in relation to the question of costs.

[6] The first aspect, therefore, is the finding that the respondent proved on the papers that the acting municipal manager (the manager) had authority to bring the application on behalf of the respondent. C

[7] The factual basis of this first aspect arose as follows:

(a)

The speaker averred in the founding affidavit that he was authorised by the municipal manager to depose to that affidavit on behalf of the respondent.

(b)

In the answering affidavit, the appellants made a number of D averments. They averred that the speaker had no authority to bring the application proceedings on behalf of the respondent. They continued that the municipal manager was not authorised to delegate his powers to the speaker. This was followed by an averment that the power to institute legal proceedings in the name of the respondent rested with the council. They concluded by E averring that, although the speaker claimed to derive his authority from the manager, no confirmatory affidavit from the manager had been annexed, and that the manager 'is not authorised to delegate any of his powers to the Speaker . . . for purposes of instituting these proceedings. Any such delegation would necessarily have to be in F writing. No such letter has been attached to the Applicant's founding affidavit.' There was an assertion that the council was the only body which had the power to initiate litigation. The challenge was not formulated specifically as one to the authority of the municipal manager, but it seems to have been dealt with on this basis. G

(c)

This attack prompted a reply. In it the speaker asserted that he had been verbally authorised by the then manager on 25 April 2008. The manager had been unable to depose to an affidavit, since he had to go to Queenstown, but had since deposed to an affidavit which was annexed. In addition, the manager employed at the time of the H replying affidavit put up an affidavit ratifying the speaker's actions prior to that date and authorising him to continue. An assertion was also made that the manager had had powers delegated to him by the council of the respondent, which included the power to represent the respondent in court proceedings. In support of this delegation, I an excerpt from the delegation-of-powers section of the Standard Operating Manual of the Department of Traditional and Local Government Affairs was put up. A further assertion was made that the respondent, as part of its obligations to develop a supply-chain management policy and to delegate powers, had delegated to the manager, inter alia, the power to appoint lawyers. J

Gorven J

A [8] It is clear that, where authority is challenged in the answering affidavit, it is permissible to make out a case in reply. [1] It is further clear that, even if the authority was not in place when the litigation commenced, actions taken can be ratified subsequently. This was fully dealt with in Smith v KwaNonqubela Town Council [2] where the following was B stated:

'It was further argued that, after an objection has been taken to the authority of a person to act on behalf of another, reliance may not be placed upon a ratification that did not exist when the objection was taken. . . . Lest there be any future doubt about the matter, this C judgment holds that the point is bad. . . .'

[9] This does not, of course, resolve the matter. It only goes so far as to show that, if the manager had the relevant power, he had ratified the actions of the speaker in writing by virtue of the supporting affidavits annexed to the replying affidavit. Mr Gajoo SC who, together with Mr Kuboni, appeared for the appellants, submitted in closely reasoned D heads of argument that the speaker failed to prove on the papers that the manager was duly authorised by the respondent to launch the application on its behalf.

[10] Mr Gajoo analysed the relevant legislation and submitted that no E legislation directly authorised the speaker or the manager of a municipality to act as agent of a municipality in launching an application in court. I agree with this analysis. He submitted that, since s 151(2) of the Constitution 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 a delegation F must be in writing. Absent any such delegation, a council resolution was required to empower an official to institute court proceedings on its behalf. These submissions are sound. Mr Seggie made the broad submission that a conspectus of the relevant legislation such as s 82 of the Local Government: Municipal Structures Act 117 of 1998, s 55 of the Local Government: Municipal Systems Act 32 of 2000 and G ss 60, 61 and 62 of the Local Government: Municipal Finance Management Act 56 of 2003 shows that the legislature has given municipal managers extensive powers. This may be so, but his submission does not go so far as to contend that these powers include the power to litigate on behalf of the municipalities by which they are employed. Neither can I find any H such power in the legislation referred to. In addition, the extract from the Standard Operating Manual relied upon by Mr Seggie does not in terms imbue them with such power. All it does is to repeat powers already conferred on managers by virtue of s 55 of the Local Government: Municipal Systems Act 32 of 2000.

I [11] Mr Gajoo submitted further that, when the applicant in application proceedings is an artificial person, some evidence should be placed

Gorven J

before the court to show that the applicant had duly resolved to institute A the proceedings. In this he relied on the dictum of Watermeyer J to the effect that 'the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant are in my view insufficient'. [3] He developed his argument by submitting that the respondent is a body corporate with perpetual B succession and is capable of suing and being sued. [4]

'The council therefore by a 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 then they act as C agents for the body corporate, the municipality.' [5]

This means that an employee such as the manager is not, without more, entitled to act as the agent of a municipality. He sought to rely on Gcali's case where the court held that a town clerk under a previous legislative dispensation was not an agent of the municipality and did not have D power to litigate for and on behalf of a municipality. In that case, however, a different legislative framework governed the relationship between the town clerk and the municipality. No general principle can therefore be gleaned from it without reference to the ruling legislative framework governing it at the time. In addition, in Gcali's case, the E applicant sued in his own name nomine officio, claiming to represent the municipality. It was held that he had no locus standi to do so. In the present matter the municipality was cited as the applicant, rather than the speaker or the manager.

[12] Mr Seggie did not press the submissions on authority contained in F his heads of argument at the hearing. He contented himself in submitting, albeit faintly, that, in situations such as those which confronted the manager in this matter, the manager must be accorded some basis for approaching the court on behalf of the municipality. He could give no...