King Sabata Dalindyebo Municipality v Magavu

• Jurisdiction: South Africa
• Judge: Dilizo AJ
• Judgment Date: 21 August 2008
• Docket Number: 1662/07
• Court: Transkei Division
• Hearing Date: 07 August 2008
• Citation: 2008 JDR 1080 (Tk)

Dilizo AJ:

[1] This is an application launched by Applicant wherein it sought the following relief:

2.1

That the attachment and removal of the applicant's goods set out in the Notice of Attachment be and is hereby declared unlawful, invalid and set aside.

2.2

That the Respondent be and is hereby interdicted and restrained from attaching and removing the applicant's goods referred to in the Notice of Attachment

2008 JDR 1080 p2

Dilizo AJ

3.

That paragraph 2.2. above shall operate as an interim or mandamus pending the finalization of the rescission application under Case No.1613/2007.

4.

That the respondent pays costs of this application".

[2] This application was preceded by an application for rescission of judgment by default granted against Applicant on 8 November 2007. On the strength of the said judgment by default, a Warrant of Execution against Applicant's assets was issued and executed on 20 November 2007.

[3] The issuance and execution of the above warrant prompted the immediate launch by Applicant of the application for rescission of judgment by default on 22 November 2007.

[4] Mr Msiwa, counsel for Applicant, advanced argument that Applicant, as a Municipality, is an organ of State and that it therefore follows that its assets are indemnified or protected from attachment as envisaged in terms of Section 3 of the State Liability Act No. 20 of 1957. Mr Mququ, counsel for the Respondent, countered the above contention in that Section 3 of the State Liability excludes local authorities from protection accorded in terms thereof.

[5] Section 239 of the Constitution of the Republic of South Africa Act No. 108 of 1996 ("the Constitution") defines "an organ of State" to mean …

"(a)

any department of state or administration, national, provincial or local sphere of government; or

2008 JDR 1080 p3

Dilizo AJ

(b)

any other functionary or institution –

(i)

exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii)

exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer".

[6] State Liability Act No. 20 of 1957:

"SECTION 1: Claims against the State cognizable in any competent court-

Any claim against the State which would, if that claim has arisen against a person, be the ground of an action in any competent court, shall be cognizable by such court, whether the claim arises out of any contract lawfully entered into on behalf of the State or out of any wrong committed by any servant of the State acting in his capacity and within the scope of his authority as such servant.

SECTION 2: Proceedings to be taken against Minister of department concerned.-

(1)

In any action or other proceedings instituted by virtue of the provisions of section one, the Minister of the department concerned may be cited as nominal defendant or respondent.

(2)

For the purposes of subsection (1),"Minister" shall, where appropriate, be interpreted as referring to a member of the Executive Council of a Province.

SECTION 3: Satisfaction of judgment.-

"No execution, attachment or alike process shall be issued against the defendant or respondent in any such action or proceedings or against any property of the State, but the amount, if any, which may

2008 JDR 1080 p4

Dilizo AJ

be required to satisfy any judgment or order given or made against the nominal defendant or respondent in any such action or proceedings, may be paid out of the National Revenue Fund or a Provincial Revenue Fund, as the case may be."

[7] Section 151(1) of the Constitution reads:

"The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic".

[8] Section 154(1) of the Constitution reads:

"The National government and provincial governments, by legislative and other means, must support and strengthen the capacity of the municipalities to manage their own affairs, to exercise their powers and perform their functions".

[9] In Mateis v Ngwathe Plaaslike Municipaliteit en andere 2003 (4) SA 361 (SCA) the Supreme Court of Appeal held that it was clear that Sections 2 and 3 of the State Liability Act No. 20 of 1957 are concerned with the liability of the central or provincial government. The liability of the municipalities, which were indeed also a form of government, was not mentioned, nor neither with regard to cause of action, nor as possible Defendant, nor as possible paying party, and was therefore excluded by the necessary implication. Neither did the Act provide for a source from which liability of the judgment could be satisfied, in contrast to the central or provincial government.

2008 JDR 1080 p5

Dilizo AJ

[10] The Court proceeded to state that it was, as unquestionably indicated by material provisions of the Act, never the intention of the Legislature to provide for liability of municipalities to third parties as a form of state liability nor include the municipality in the word "State" for the purposes of the Act. It was therefore held that sale in execution of assets of a municipality in satisfaction of a judgment against it is competent.

[11] In the light of the above legal expositions, I am unable to come to the conclusion that a municipality, though it is admittedly an organ of state in terms of Section 239 of the Constitution, is a "STATE" as envisaged in terms of the State Liability Act. This Act prohibits execution against the State or provincial government because of the massive disruptions which execution against the state assets might cause. In terms of Section 2 of the State Liability Act a Minister of a department should be cited as nominal defendant or...