Mgaguli and Others v Setlhogomi and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: MC Mamosebo J
• Judgment Date: 23 December 2021
• Docket Number: 2620/2021
• Hearing Date: 20 December 2021
• Court: Northern Cape Division
• Citation: 2022 JDR 0335 (NCK)

Mamosebo J:

[1]

The applicants launched an urgent application on the basis that the termination of employment of the first applicant, Ms Busiswe

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Patience Mgaguli, Acting Municipal Manager, Phokwane Municipality, was unlawful. They rely on two aspects, first, that the termination amounted to a breach of contract and, secondly, that it amounted to an exercise of public power that breached the rule of law.

[2]

This application was set down for 20 December 2021 with severely truncated time-periods determined by the applicants. The Notice of Motion was served and filed on 15 December 2021 for the respondents to consider the application and to file their answering affidavit by no later than 17 December 2021 at 13 :00 and for the applicants to file their replying affidavit by 17 December 2021. The first to twelfth respondents filed a Notice to Oppose the application on 17 December 2021. The basis for opposition is that the application is not urgent.

[3]

At the commencement of the hearing, Mr Ntombeni, appearing for the applicants, took issue in terms of the Rule 7(1) Notice pertaining to the lack of authority of Moribe Attorneys to act on behalf of the eleventh respondent, the Municipal Council: Phokwane Municipality which they served on the respondents' legal representatives the morning of the hearing of the application. While Mr Ngandwe, counsel for the respondents, confirmed to only receiving the Notice just before the court sitting, more detail in respect of Moribe Attorneys' locus standi are captured in the answering affidavit with supporting documentation and there was no need, according to him, for the matter to be postponed for this reason. According to Mr Ngandwe the answering affidavit was served on 19 December 2021 at 20:53 and the respondents were yet to receive the replying affidavit. Notwithstanding, both counsel indicated their readiness to argue urgency while the applicants sought the relief as outlined in Part A of the Notice of Motion.

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[4]

The first applicant is Ms Busiswe Patience Mgaguli, Acting Municipal Manager, Phokwane Municipality. The second applicant, Ms Portia Remaketse Selogilwe, is the Speaker, while the third respondent, Mr Tebogo Afrika is the Mayor. The first to tenth respondents as well as the twelfth respondents are Council members and the eleventh respondent is the Municipal Council: Phokwane Municipality.

[5]

The following relief is sought by Ms Mgaguli in Part A of a two- pronged application:

"1.

Dispensing with the forms, service, time limits and such further requirements as may be applicable and prescribed by the Rules of this Honourable Court, condoning the applicants' non-compliance therewith and directing that this matter be heard as one of urgency as contemplated in terms of Rule 6(12) of the Uniform Rules of Court.

2.

That the first respondent is interdicted and restrained from presenting himself as an acting Speaker of Council and/or acting under such false pretence or giving instructions or directive under such authority within the Municipality or publicly.

3.

The first and 10th respondents are interdicted and restrained from interfering with the first applicant's lawful discharge of her duties and obligations as an acting Municipal Manager. Alternatively, first and 10th respondents are interdicted and restrained from unlawfully interfering with the first applicant's lawful discharge of her contractual obligations as an acting Municipal Manager who is duly appointed.

4.

That Mr Mpho Mojaki, is interdicted and restrained from presenting himself as an acting Municipal Manager and/ or giving instructions or performing any such obligations or exercising any authority under false pretence of being an appointed acting Municipal Manager by the first and 1oth respondents.

5.

Declare that pending the determination of Part B, the first applicant shall remain as an acting Municipal Manager as duly appointed on 11 October 2021 until expiry of her contract on 14 January 2022, alternatively until her employment contract or administrative support is lawfully terminated or extended by a duly authorised Council.

6.

That any party which elects to oppose the relief sought be ordered to pay the costs of this application on an attorney and client scale either jointly or severally.

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7.

Granting the applicants further and/ or alternative relief."

[6]

Part B is an application still to be heard seeking to review and set aside the impugned decision of terminating the first applicant's employment as an acting Municipal Manager as unlawful and invalid. A declarator that the Council meeting organised and convened by the first to 10th respondents on 13 December 2021 and the consequent resolutions are invalid and unlawful. A declarator that the first to 10th respondents lacked the authority to terminate the first applicant's employment or to convene any Council meeting and such conduct was unlawful and invalid.

Points in limine:

[7]

The following points were raised in limine by the respondents:

7.1 Lack of jurisdiction

Mr Ngandwe, for the respondents, contended that this court lacked jurisdiction to hear this application, maintaining that the applicants have failed to exhaust all remedies before litigating. Counsel intimated that this matter is not only a labour matter but it is also political. I find the contention that this Court lacks jurisdiction on the basis of the issues being labour-related unsubstantiated solely on the basis of the Constitutional Court pronouncements in Baloyi v Public Protector and Others [1] where Theron J remarked:

"[15]

...In Chirwa, [Chirwa v Transnet Limited and Others [2] ] the majority of this Court stated that 'the jurisdiction of the High

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Court is not ousted simply because a dispute is one that falls within the overall sphere of employment relations"'.

The Concourt went further to state:

"[33]

In Gcaba, this Court made clear that an assessment of jurisdiction must be based on an applicant's pleadings, as opposed to the substantive merits of the case. It held:

'In the event of the Court's jurisdiction being challenged ..... the applicant's pleadings are the determining factor. They contain the legal basis of the claim under which the applicant seeks to invoke the court's competence. While the pleadings - including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits - must be interpreted to establish what the legal basis of the applicant's claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction." '

Regard being had to the pleadings in the notice of motion and the relief sought, it is my view that this matter is not within the exclusive jurisdiction of the Labour Court and that makes the submission that it is a labour matter unsubstantiated.

Invoking Clause 24 ("MS1" to the founding papers) of the Phokwane Local Municipal Council Standing Orders By-Law, Mr Ngandwe submitted that the eleventh respondent is empowered to rescind its own resolution either at an Ordinary Meeting or at an Urgent Special Council Meeting, which has not been done.

Clause 24 stipulates:

"Motion to rescind any resolution passed within the preceding three months

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(1) When a member proposes a motion in terms of provisions of section 21 which -

(a)

is aimed at the revocation or amendment of a resolution of the Council taken within the preceding three months, or

(b)

has the same purport as a motion which has been negative within the preceding three months such motion shall be placed on the agenda only if the notice of such motions is signed by three members in addition to a member who proposes such motion.

(2) A motion similar to the one which was disposed of in terms of subsection (1), shall not again be proposed by a member before the expiry of six months after such disposal.

(3) Notwithstanding the provisions of subsection (1) and (2), the Council may at any time rescind or amend a resolution in pursuance of a recommendation of the Executive Committee contained in a report in accordance with section 15.

In countering this submission, Mr Ntombeni argued that the application is not dealing with the resolution in terms of section 15. I do not agree. The appointment of the first applicant was by resolution of Council and nothing stops Council, the eleventh respondent in this instance, to rescind its own resolutions passed within the...