Dihlabeng Local Municipality v Nthute

• Jurisdiction: South Africa
• Judge: Kruger J
• Judgment Date: 22 February 2007
• Citation: 2007 JDR 0778 (O)
• Docket Number: 4107/2007
• Court: Orange Free State Provincial Division

Kruger J:

[1]

On 23rd September 2005 the applicant launched an application seeking a declaratory order that the appointments of 1st to 5th respondents by 6th respondent are ultra vires and of no force or effect and that the employment contracts of the 1st to 5th respondents be terminated.

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[2]

The appointments in question were made by the 6th respondent in his capacity as Municipal Manager of the applicant, a post he held from 1 December 2003 until his suspension on 4 August 2005.

[3]

Applicant's case is that the appointments did not fall within the express bounds of the empowering legislation and should be declared a nullity because of the illegality of the appointments. Applicant says that the 2nd to 5th respondents are all managers directly accountable to the Municipal Manager and as such subject to section 57 of the Local Government: Municipal Systems Act No. 32 of 2000. Applicant's case is that 2nd to 5th respondents were not properly appointed in terms of section 57 which provides as follows in section 57(1):

"57. Employment contracts for Municipal Managers and managers directly accountable to Municipal Managers. -(1) A person to be appointed as the Municipal Manager of a municipality, and a person to be appointed as a manger directly

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accountable to the Municipal Manager, may be appointed to that position only-

(a)

in terms of a written employment contract with the municipality complying with the provisions of this section; and

(b)

subject to a separate performance agreement concluded annually as provided for in subsection (2)."

[4]

Section 56 deals with the appointment of managers directly accountable to Municipal Managers. Section 56(a) reads:

"56. Appointment of managers directly accountable to Municipal Managers. -(a) A municipal council, after consultation with the Municipal Manager, appoints a manager directly accountable to the Municipal Manager."

[5]

The 2nd to 5th respondents were appointed as "Unit Managers", who, according to applicant, are directly accountable to the Municipal Manager and thus have to be appointed under section 57. The 2nd to 6th respondents, on the other hand, say that the 2nd to 5th respondents were

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properly appointed by the 6th respondent under section 57(1)(e) which 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-

(e)

the appointment of staff other than those referred to in section 56(a), subject to the Employment Equity Act, 1998 (Act No. 55 of 1998);"

[6]

Applicant's case against the 1st respondent, who was appointed as labour relations officer/legal assistant, is that such post does not exist on the staff establishment of the applicant.

[7]

Because of the disputes of fact on the papers, the application was on 26 January 2006 referred for the hearing of oral evidence. The applicant called four witnesses and only the 6th respondent testified on behalf of the respondent.

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[8]

Applicant's first witness was Mr. D. R. Evans, who is the Integrated Development Planning Manager of the applicant. He has been working for local government since at least 1976. He was the town clerk of Paul Roux from 1993, a post he held for 11 years. Before that he was a town clerk at Odendaalsrus for 14 years. The name "Town Clerk" is no longer used today. Under current legislation the post is referred to as "Municipal Manager".

[9]

Prior to the year 2000 there were separate municipalities at Bethlehem, Rosendal (Mautesendal), Paul Roux, Clarens and Fouriesburg (Mashae-Fourie). Comprising, respectively the five areas of (1) Bethlehem, (2) Rosendal and Mautse, (3) Paul Roux and Fateng, (4) Clarens and Kgubetswana, and (5) Fouriesburg and Mashaeng. On 5 December 2000 these 5 municipalities were consolidated into the new Dihlabeng Local Municipality, with its seat at Bethlehem in terms of Free State Provincial Notice 184 of 2000 of 28 September 2000 as corrected by Notice 201 of 2000 dated 6 October 2000. The municipalities (TLC's) of Clarens, Mashae-Fourie, Paul Roux and Mautsendal were

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in the Notice disestablished and described as administrative units (paragraph 9(1)). The Notice stated in paragraph 9(2):

"(2)

The head of an administrative unit shall -

(a)

be responsible for the control, co-ordination and general supervision of that administrative unit; and

(b)

act under the direction of, and be accountable to the Municipal Manager for the continued operation of the said administrative unit."

[10]

As to the duties of Unit Managers Evans testified that the Unit Manager must manage the town and then report directly to Municipal Manager, so he works directly under the Municipal Manager. The unit manager must see to it that finances are controlled in that town; that services are rendered there; that maintenance is done in that town; he must see to staff at that town. Basically he has to manage the whole office and then report to the Municipal Manager. His post is comparable exactly to that of the former town clerk.

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[11]

It was put to Evans that the respondents' case is that they did not fall under the Municipal Manager, but reported to the various directors, to which he responded that that would be contrary to the section 12 Notice (184 of 2000) referred to above.

[12]

Evans referred to the organogram proposed by the 6th respondent, annexure "MM1" to the answering affidavit. Paragraph 5 deals with the office of the Municipal Manager and paragraph 5.8 deals with Unit Managers (also referred to as Branch Managers). Several witnesses were referred to this page:

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"5.8

BRANCHES/UNITS

5.8.1

Organisational structure: All Branches/Units

Municipal Manager

Branch Manager: Paul Roux & Fateng Branch Manager: Rosendal & Mautse Branch Manager: Fouriesburg & Mashaeng Branch Manager: Clarens & Kgubetswana

5.8.2

Main functions: All Branches/Units

1.

To manage the provision of the municipality's services within the principles of effectiveness, efficiency, reliability and economy and in line with the Municipal Service Delivery Plan.

2.

To manage resources of the municipality within the Town (Human, capital, technology) in line with the Municipal Manager's directives, legislation and council resolutions and policy.

3.

To support the Municipal Manager in the discharge of his/her duties within a town in line with legislation and as determined by himself/herself from time-to-time so as to

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strengthen governance, service delivery and development impact.

4.

To lead and manage the provision of municipal services in respect of cemeteries, reception and customer care, refuse removal, maintenance, gardening, cleaning, sanitation, local economic development, and housing etc. under the technical and functional supervision and control of respective Directors/General Managers so as to contribute to the upliftment of the quality of life of communities in a town, and as determined by the Municipal Manager from town to town."

[13]

In the proposal, annexure "MM1", put forward by the 6th respondent it is stated under "Organisational Decision Principals":

"3.

DECENTRALIZED STRUCTURE AND RESPONSIBILITIES

Devolution of power to the units closest to communities for service delivery. Towns to have Branch Managers reporting to Municipal Manager for obtaining responsiveness to communities."

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In cross-examination Evans agreed that section 66 of the Local Government: Municipal Systems Act 35 of 2000, (hereinafter referred to as the Systems Act), provides that the responsibility for approving the staff establishment lies with the Municipal Manager with the qualification that Council has to approve it, because council has to approve the financial expense on the budget. Section 66 reads as follows:

"66. Staff establishments. -(1) A Municipal Manager, within a policy framework determined by the municipal council and subject to any applicable legislation, must-

(a)

approve a staff establishment for the municipality;

(b)

provide a job description for each post on the staff establishment;

(c)

attach to those posts the remuneration and other conditions of service as may be determined in accordance with any applicable labour legislation;

and

(d)

establish a process or mechanism to regularly evaluate the staff establishment and, if necessary, review the staff establishment and the remuneration and conditions of service.

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(2) Subsection (1)(c) and (d) do not apply to remuneration and conditions of service regulated by employment contracts referred to in section 57."

[14]

Evans was referred to the code of conduct for councillors contained in Schedule 1 to the Systems Act where paragraph 11 provides:

"A councillor may not, except as provided by law -

(a)

interfere in the management or administration of any department of the municipal council unless mandated by council."

[15]

Evans was referred to the so-called Makomota structure, a staff structure which was in place at the applicant during the relevant time which also dealt with the office of the Municipal Manager:

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"OFFICE OF THE MUNICIPAL MANAGER

Municipal Manager

Personal Assistant	Manager Integrated Development Programme
Information Management Manager	Internal Audit Manager
Officer: Community Relations

Director Community Services Director Public Works Chief Financial...