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IN THE HIGH COURT OF SOUTH AFRICA

 

(ORANGE FREE STATE PROVINCIAL DIVISION)

 

Case number : 4495/2002

 

In the matter between:

MOTLATSI BARNABAS MOLEFE Applicant

and

DIHLABENG LOCAL MUNICIPALITY First Respondent

MR JM THOMPSON Second Respondent

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CORAM: RAMPAI J

_______________________________________________________________

HEARD ON: 2 MAY 2003

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DELIVERED ON: 5 JUNE 2003

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[1] The matter came to this Court by way of an urgent application. On 13 December 2002 it served before Wright J, The application was then postponed on a few occasions. On 2 May 2003 it was argued before me. The applicant seeks the review and setting aside of the first respondent’s purported decision whereby he was placed on compulsory leave pending the outcome of a disciplinary hearing instituted against him. This relief is embodied in prayer 2 of the notice of motion. The first respondent has since conceded that the applicant was entitled to the relief as embodied in prayer 3 of the notice of motion. Therefore, the second leg of the original dispute has fallen by the wayside. No specific order is sought from the second respondent. Since he has adopted a neutral attitude to the matter, from now on I shall refer to the first respondent simply as the respondent or Dihlabeng Local Municipality.

[2] The applicant, who is a lawyer by profession, was appointed a municipal manager of the respondent, Dihlabeng Local Municipality on 1 November 2001. On 25 September 2002 the respondent’s mayor on his own initiative suspended the applicant for 7 workdays. On 4 October 2002 on the recommendation of the prosecutor the respondent’s mayor suspended the applicant for a period of 30 days. On 1 November 2002 a year after his appointment the applicant was advised of a disciplinary inquiry contemplated against him. On 4 November 2002 he was further suspended for 30 work days. On 15 November 2002 his previous lawyer, Attorney Cachalia requested for further particulars to the various charges contained in the formal charge sheet. On 28 November 2002 he was advised of the date on which the intended disciplinary inquiry would be held. On 30 November 2002 his current lawyer, Attorney Diener sent yet another request to the respondent for further particulars to the various charges. On 5 December 2002 the appellant appeared at the disciplinary inquiry but the inquiry was postponed. On 10 December 2002 he was advised by Mr Dirk Reuben Evans, the acting municipal manager, that on the previous day, the Dihlabeng Local Municipality had, by resolution, condoned the compulsory leave granted to him. On 13 December 2002 this urgent application was launched, six days before the hearing of the disciplinary inquiry which had been postponed to 18 December 2002. This then is a brief historical background to this dispute.

[3] In his founding affidavit the applicant challenged the alleged decision of 9 December 2002 attributed to the respondent which was communicated to him on Tuesday 10 December 2002. The disputed decision was contained in a letter dated 10 December 2002 which was addressed to the applicant, written by the human resources department and signed by the acting municipal manager on behalf of the Dihlabeng Local Municipality. The heading of the letter was "compulsory leave". Although there is no such a thing as compulsory leave according to the official disciplinary code of the Dihlabeng Local Municipality, both counsels were unanimous that such a fancy label meant nothing more and nothing less than suspension from work.

3.1 The first paragraph of the letter reads as follows:

"With reference to the above I wish to advise that the council on 9 December 2002, item P35/2002 refers, resolved to condone the compulsory leave granted to you."

3.2 The second paragraph thereof reads as follows:

"Your attention is drawn thereto that you will be on compulsory leave until such time as your disciplinary hearing is finalized and a verdict is imposed."

[4] Initially the disciplinary inquiry was set down for hearing on 5 December 2002. However, the hearing did not get going. The disciplinary inquiry was postponed to 18 December 2002. It appears that the prosecutor and the applicant’s lawyer struck a deal of some sort. Now the parties differ remarkably as to the real reasons for the postponement and the exact terms of the agreement. According to the applicant it was agreed that his suspension be extended until 19 December 2002. According to the respondent it was agreed that the applicant would remain suspended not until 19 December 2002 but until the end of the disciplinary inquiry. See paragraph 3.2 above. The letter of 10 December 2002 therefore triggered off this application.

[5] The letter stated in paragraph 1 that the council of the Dihlabeng Local Municipality met on 9 December 2002 and passed a resolution as per item P35/2002 whereby the compulsory leave, in other words the further suspension of the applicant granted by the disciplinary inquiry prosecutor was approved. The practical effect of the alleged decision was to extend the applicant’s suspension from work for an indefinite period of time pending the outcome of the disciplinary inquiry. The applicant’s contention is that on 5 December 2002 his suspension lapsed. I now proceed to examine the substance of this contention.

[6] Paragraph 5 Disciplinary Code and Procedure provides that the mayor may in certain circumstances suspend an employee for a period of at most 7 work days pending the outcome of his investigation. Acting in terms of this section the mayor suspended the applicant on 25 September 2002 for a period of 7 workdays while the mayor was investigating certain accusations levelled against the applicant. The mayor was empowered to investigate the applicant by paragraph 4 of the Disciplinary Code and Procedure. This code forms part of the applicant’s employment contract.

During the course of the investigation the mayor found some evidence of serious misconduct in support of the accusations. He then referred the matter to the disciplinary inquiry.

[7] Paragraph 12 of the Disciplinary Code and Procedure provides that the mayor may, at the request of the disciplinary inquiry prosecutor suspend an employee pending the outcome of the disciplinary inquiry. On 4 October 2002 the mayor suspended the applicant for one month pending the outcome of the disciplinary inquiry. He did so on the recommendation of the appointed prosecutor of the disciplinary inquiry. This notice of suspension was effective until 5 November 2002. But 4 days before the expiry of the second suspension, on 1 November 2002 to be precise, the applicant was formally charged. Among others, various counts of alleged insubordination were included in the charge sheet. Four weeks later the applicant was given written notice of the date of hearing.

[8] On 4 November 2002 the mayor once again suspended the applicant for a further period of one month pending the outcome of the disciplinary inquiry. He did so in terms of paragraph 15 of the Disciplinary Code and Procedure. It seems to me that this further suspension was necessitated by the fact that at that stage no date had been set for the hearing of the disciplinary inquiry. The applicant was notified about the date of hearing on 28 November 2002.

[9] When the applicant was so suspended for the third time, the respondent had already charged him. He was charged before the second suspension had lapsed. When the applicant was so suspended for the second time, however, there was no charge. The charging of an accused employee is a significant event in the course of disciplinary proceedings. The second suspension was operative from 4 October 2002 until 5 November 2002. The disciplinary prosecutor therefore had time until 5 November 20002 to charge the applicant. During that period he framed the charge and notified the applicant about the charges on 1 November 2002. But suppose the disciplinary prosecutor had failed to charge the applicant and the second period of suspension in terms of paragraph 13 had lapsed on 5 November 2002, the disciplinary inquiry would not automatically have collapsed. The applicant would not have been automatically entitled to return to work. In those circumstances the disciplinary prosecutor would still be able to proceed with the disciplinary inquiry provided he supplied sound reasons to the mayor in terms of paragraph 15 for his delay in charging the accused employee within the second period of suspension in terms of paragraph 13. Should the prosecutor fail to supply sound reasons, then the suspension in terms of paragraph 13 lapses. Paragraph 16(a) comes into operation in favour of the accused employee. It provides that if the accused employee has not been charged when the suspension in terms of paragraph 13 lapses the disciplinary inquiry itself lapses and the employee must return to work.

[10] In terms of paragraph 15, if the mayor is satisfied with the prosecutor’s explanation, he may once more suspend an employee for a further period of one month. The third suspension of the accused employee in terms of paragraph 15 gives a disciplinary prosecutor, who for good reason, was unable to charge the accused employee in good time, a second chance to do so. However, the chance given to the disciplinary prosecutor in this circumstances is final.

Should the disciplinary prosecutor again fail to charge the accused employee during the further suspension in terms of paragraph 15, then the whole disciplinary inquiry lapses and the employee must return to work.

[11] Paragraph 16(b) states that where the disciplinary prosecutor fails to charge the accused employee within the period of suspension in terms of paragraph 15 then the entire inquiry itself lapses and the employee must return to work. In the instant case there was no failure of any sort on the part of the disciplinary prosecutor. The applicant was timeously charged during the second suspension. The further suspension or the third suspension of 4 November 2002 was really unnecessary since the applicant had already been charged. Implicit in the provisions of paragraph 12 and paragraph 15 read with paragraph 16 is the logical idea that once an accused employee has been formally notified of the charge he or she remains suspended until the disciplinary inquiry is finalized. The moment the employee is charged the mayor’s role of suspending such an employee at intervals ceases. The presiding officer of the disciplinary inquiry becomes ceased with the matter. The practical effect of the charging is that the applicant remains suspended until the end of the disciplinary inquiry. I can find nothing in the Disciplinary Code and Procedure to support the applicant’s restrictive construction that his suspension expired on 5 December 2002 because the mayor did not renew his suspension or that he did not suspend him further. It was not required of the mayor to keep on suspending the employee periodically as long as the disciplinary inquiry endured. The primary purpose of the mayoral suspension be it in terms of paragraph 13 or paragraph 15 is to give the disciplinary prosecutor an opportunity to charge the accused employee and also to protect an accused employee against the agony of unnecessary or deliberate delays on the part of a punitive management. That much is clear upon the proper construction of paragraph 16 read with those two provisions. To construe those two provisions as requiring that the disciplinary inquiry has to be finalized during the suspension period as the applicant says can lead to absurdity. The matter, in other words, the disciplinary case lapses if the employee is not charged and not if the inquiry is not finalized within the suspension period. That is the crux of the matter.

[12] The respondent alleged in its opposing affidavit signed at Bethlehem on 10 February 2003 that the respondent’s municipality council took a decision on 9 December 2002 to endorse the so-called compulsory leave granted to the applicant on 5 December 2002 by the disciplinary prosecutor. The alleged decision was communicated to the applicant on 10 December 2002. The letter in question appears on p 19 of the paginated court record. The alleged council decision was fiercely disputed by the applicant in his replying affidavit. It is not in dispute that the Dihlabeng Local Municipality held a meeting on 9 December 2002. The business which was transacted at the meeting included a secretarial feedback on the disciplinary inquiry against the applicant and his demand for legal representation. This two matters affecting the applicant appeared on the agenda dated 6 December 2002 as item P35/2002. Those were the only two issues on the agenda which had a bearing on the applicant. There was no other item on the agenda relating to him. Rule 45(1) under Part 8 of the Free State Provincial Gazette published on 1 December 2002 prohibits the municipal council from dealing with any matter in a council meeting unless such matter had been properly included in the written agenda. Seeing that there was no item on the agenda of the council meeting of 9 December 2002 concerning the leave or suspension of the applicant, the alleged resolution taken against him was undoubtedly invalid. Such a decision was of no legal force and effect. However, a verbatim transcript of the proceedings of the said council meeting, fortifies the applicant’s contention not only in the sense that the matter was not on the agenda but also in the sense that the matter was never even discussed. The fact of the matter is simply that the respondent did not pass the alleged resolution to place the applicant on the so-called compulsory leave or job suspension.

[13] It follows as matter of logic from the aforegoing that there is no official decision for me to review or set aside as the applicant’s counsel Mr Vetten argued. What the respondent’s deponent Mr Dirk Reuben Evans communicated to the applicant in writing on 10 December 2002 was a false representation of what truly transpired in the council meeting of the Dihlabeng Local Municipality held at Bethlehem on Monday 9 December 2002. There was virtually no grain of truth in the first paragraph of the letter he wrote and communicated to the applicant. And he knew it. What is worse is that two months later on 10 February 2003 to be precise, he signed a sworn statement which was used by the respondents as its opposing affidavit. In that sworn statement he repeated the lie under oath. This was a deliberate attempt to mislead the court. Misleading the court can lead to serious miscarriage of justice. It is potentially prejudicial not only to a party’s litigation opponent but also to the fundamental tenets of justice.

Much reliance was placed upon the case of NGWENYA v PREMIER OF KWAZULU NATAL (2001) 22 ILJ 1667 (LC) per Ngcamu AJ. That case is distinguishable. There the applicant was suspended but never charged for six months. Here Mr Molefe was suspended and charged five weeks later. Therefore there can be no question of precautionary suspension for an indefinite time without a legitimate reason. On the merits I would therefore find for the respondent.

[14] I now turn to the issue of Mr DR Evan’s authority to represent the respondent in these proceedings. Obviously this is a point taken in limine by the applicant. It is unusual to deal with the merits first, as I have done, where a point in limine has been raised. It is usual to deal with a point in limine first and the merits afterwards if needs be. This is understandable. A point in limine if upheld makes it unnecessary for a judge to examine the merits of the matter. Be that as it may, I know of no hard and fast rule which forbids the approach I have decided to adopt in the instant case. The underlying idea which prompted me to adopt the unusual approach was to give a judgment that is substantive in the first instance and technical in the second instance. What the litigants really seek in this case I believe, is substantive justice and not mere cosmetic justice.

[15] On behalf of the respondent Mr Evans signed an answering affidavit at Bethlehem on 10 February 2003 in support of the respondent’s position to the application. He stated the following in paragraph 1 of his answering affidavit which appears on p 67 of the paginated record:

"I am an adult male acting municipal manager in the employ of first respondent, at Civic Centre, 20 Muller Street, Bethlehem. I am as such duly authorised to depose to this affidavit on behalf of first respondent."

[16] His alleged authority to act in such a representative capacity as the respondent’s chief deponent was vigorously challenged right from the onset. The applicant stated the following in paragraph 2 of his replying affidavit which appears on p 96 of the paginated record:

"I reiterate that there was no decision by first respondent and no resolution by first respondent to oppose to the present application. I do have knowledge of all the agendas and items on these agendas, record of all relevant meetings and no decision or resolution to oppose the application was taken by the first respondent."

[17] On 27 February 2003 Wright J postponed the application to 24 April 2003 for the purpose of affording the respondent an opportunity of supplementing its papers in order to deal specifically with the challenge raised by the applicant to the alleged representative authority of the respondent’s chief deponent.

[18] In its supplementary answering affidavit dated 10 March 2003 the respondent’s deponent acknowledged the two pertinent issues which the court now has to determine. In the first place the authority of Mr DR Evans to make the answering affidavit on behalf of the respondent was questioned. In the second place the legality of the opposition of the application by the respondent without any proper official resolution by the Dihlabeng Local Municipality was equally challenged. The respondent asserted in its supplementary answering affidavit that its deponent Mr DR Evans derived his authority to act on its behalf in these proceedings as its representative deponent from the powers orally delegated to him by the mayor of the Dihlabeng Local Municipality in terms of rule 18(c) of the System of Delegated Powers adopted in terms of section 59(1) Local Government : Municipal Systems Act No 32 of 2000 and promulgated by the Dihlabeng Local Municipality on 23 July 2001. The respondent further asserted that by virtue of the same rule it had the authority to oppose this application without a resolution.

[19] In his supplementary replying affidavit dated 26 March 2003 the applicant still reiterated his earlier contentions that neither the respondent nor the respondent’s chief deponent was properly authorized to oppose his application. He restated his position in the following manner in paragraph 3 of his supplementary replying affidavit on p 154 of the paginated record:

"Reuben Evans mentioned my contention that there was no decision made by the first respondent and no resolution taken by the Municipality to oppose the application. He does not provide any decision or resolution to this effect. In fact, he does not deal with my contention in any manner whatsoever."

[20] I deem it necessary to deal with rule 18 for the sake of clarity. The construction of this rule is at the heart of this point in limine. The relevant portions of this rule are sub-rule (a) and sub-rule (c). They read as follows:

20.1 Sub-rule (a) provides:

"That the Mayor or his nominee in consultation with the Municipal Manager and Speaker be granted authority to take all necessary action including the signing of any necessary documents, to carry out a resolution of the Council to institute or oppose any legal proceedings."

20.2 Sub-rule (c) provides:

"That when the Council’s legal advisers advise the Mayor in consultation with the Municipal Manager and Speaker or its nominee that any action or legal proceeding which has been instituted against the Council requires to be urgently opposed then, in circumstances when a meeting of the Council cannot be timeously arranged, the Mayor in consultation with the Municipal Manager and Speaker be and is hereby granted authority to oppose all and any of such actions or legal proceedings and to take further action as may be necessary in order to give proper effect to such opposition, having due consideration for the merits of each matter, and with due regard for the interests of the Council; provided that in every instance in which such an action or legal proceeding is imposed in terms of this delegated power, the relevant details shall be reported to the Council as soon as practically possible, for its information."

[21] I propose to deal with the pertinent issue of the legality of the respondent’s opposition first. The applicant’s case is that the purported opposition of his application by the respondent is of no legal force and effect. The ground on this contention is that before a local government organ sets out to oppose legal proceedings, it must have passed a specific municipal resolution or council resolution to back up its line of action.

Although the applicant does not say so in so many words, paragraph 6 of his supplementary replying affidavit on p 160 of the paginated record obscurely suggests that in his view sub-rule (a) applies to the situation. Mr Claasen, counsel for the applicant, says the following in paragraph 1.3 of the applicant’s heads of argument:

"The then supplementary affidavit filed on behalf of the first respondent clearly concede that there was no meeting or resolution by a council of the first respondent to oppose the present application. It now falls back on a promulgated system of delegation."

Mr Vetten, who argues the case for the respondent, contends that sub-rule (c) and not sub-rule (a) governs the situation we are here dealing with.

[22] Comparatively speaking sub-rule (a) is operative in the sphere of ordinary legal proceedings against a local government or municipality where there is no measure of urgency involved, for instance proceedings by way of a summons. In such non-urgent legal proceedings a specific resolution by a municipal council is required. This sub-rule (a) authorises the mayor or his nominee (my own emphasis) in consultation with the designated mayoral subordinates to carry out the specific resolution of the municipal council to contest any such non-urgent legal proceedings. In this scenario, the mayoral team derives its authority to act on behalf of the local government from the prior resolution of the municipal council which mandates and enables the council itself through its functionaries to defend the action. This sub-rule lays down an ordinary procedure which must be adhered to in the ordinary course of events

[23] Let us now turn to the other side of the coin. Here we find sub-rule (c). It governs the procedure in connection with legal proceedings against a local government which proceedings require urgent steps to oppose where the prevailing circumstances are such that any attempt to convene a statutory council meeting timeously in order to pass the necessary resolution to oppose such urgent legal proceedings will delay the legal steps necessary to safeguard the interests of the municipality concerned. In this scenario sub-rule (c) authorises a mayoral team to act on behalf of a local government without a specific prior resolution of a municipal council. Here, sub-rule (c) regulates a special procedure which governs urgent legal proceedings instituted against a municipality. This extra-ordinary procedure is prescribed when the procedure ordinarily used lacks the speed necessary to protect the municipal interests at stake.

[24] With those comparative considerations in mind I proceed to consider the instant case in brief. The matter came to court by way of rule 6(12)(a) of the Uniform Rules of Court which is a fast track of litigation by its very nature. The respondent and its counsel admitted that this application was indeed an urgent matter. Mr Vetten, in the respondent’s heads of argument in fact urged me to adopt a robust approach to the apparent factual dispute. He submitted it would be pointless to refer the matter to trial for evidence since the effect thereof would be dilatory. He further submitted that the dispute concerning the duration of suspension was not a material dispute of fact in any case. He then referred me to the case of PLASCON-EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD 1984(3) SA 623 (AD) as later expounded in NGQUMBA EN ANDER v STAATSPRESIDENT EN ANDERE; DAMONS NO EN ANDERE v STAATSPRESIDENT EN ANDERE; JOOSTE v STAATSPRESIDENT EN ANDERE 1958(4) SA 224 at 269C-263C.

[25] On the strength of these submissions, the nature of the proceedings and the relief sought, there can be no doubt that these are urgent legal proceedings as envisaged in sub-rule (c). These urgent proceedings were initiated against the respondent and not by the respondent. The application was issued during the festive season on 12 December 2002. The sub-rule as we have seen dispenses with the prior municipal resolution in urgent legal proceedings such as the one we are dealing with here. Urgency is the hallmark of this sub-rule. In the light of all these factors I have come to the conclusion that there is no substance in the applicant’s contention that the respondents’ opposition of the application without a prior resolution to back it up was an illegality which vitiates all the legal steps so far taken in order to execute its defence or its opposition to the application. In my view the applicant’s challenge to the respondents’ authority to oppose this application merely on the grounds that there was no prior resolution to legitimise such opposition has no foundation. The pertinent issue is rather whether the pioneers of such opposition were properly designated and authorised functionaries or nominees of Dihlabeng Local Municipality?

[26] Now I proceed to examine the applicant’s challenge of the authority of the respondents’ deponent. Was he an authorized nominee? This challenge is based on the construction of sub-rule (c). Mr Claasen argues that the council of the Dihlabeng Local Municipality did not authorise the respondent’s deponent to act on its behalf in this case. Mr Vetten disagrees. His argument is that the respondents’ deponent was duly authorised to act on behalf of the respondent in this case. In developing his argument further, Mr Claasen contends that initially the respondents’ deponent relied on his job description as the source of his representative authority to act on behalf of the respondent in these proceedings. I can recall that the respondents’ deponent stated in his answering affidavit that he was the acting municipal manager of the first respondent and that as such he was authorized to make and sign the answering affidavit on behalf of the first respondent. But in terms of this sub-rule (c) no authority is expressly bestowed upon an acting municipal manager.

[27] On 27 February 2003 his alleged authority was hotly contested before Wright J. I get the impression that Wright J, after hearing argument on this issue, had some reservations which was why he postponed the application to allow the respondent the opportunity to back up its allegation. Pursuant to that court order, the respondent subsequently filed a supplementary answering affidavit in an attempt to clarify or to establish the authority of its deponent. The supplementary affidavit like the answering affidavit itself, was still made and signed by the same gentleman whose authority was challenged. There was no relevant written resolution attached or any averment of any such resolution in support of his alleged authority. On this second occasion the deponent’s job designation as the source of his authority appears to have yielded ground. Instead the respondent now falls back on a promulgated system of delegation as the nerve centre of its deponent’s authority to act on its behalf.

[28] Once again the argument revolves around the interpretation of sub-rule (c). This sub-rule delegates the powers of a municipal council to certain designated functionaries. Those three functionaries ordinarily are the mayor, the municipal manager and the council speaker. This is the primary sphere of a designated team. To the outside world the mayor is the real face of a municipality or a local organ of government. He is the most authoritative voice of any local government. He is empowered with the emergency authority to represent his local government by opposing any urgent legal proceedings. He is not supposed to act alone in exercising his emergency powers. He is required to collaborate with his two lieutenants the municipal manager and the council speaker. But the mayor is the man or the woman in charge - the convenor, the head and the leader of the emergency mayoral team. This three member emergency team is the leadership core of any municipality. The emergency powers delegated to these designated most senior leaders are considered so important that not even their deputies are competent to exercise the exclusive prerogative of the designated senior leaders.

[29] It is conceivable that the aforesaid ordinary composition of the emergency team may some times be affected in certain circumstances, for instance, one member of the team might not be available for an emergency consultation. In the instant case the ordinary emergency team was not quorate because one of its core members, the municipal manager, had been absent because of the suspension. That was the first problem. The second problem was that the suspended mayor himself initiated these urgent legal proceedings against the very municipality he ordinarily would have had to defend. The third problem was even more intriguing. The remaining two core members of the emergency team apparently thought out a quick solution. The mayor in consultation with the speaker all on their own co-opted the deponent, Mr DR Evans to replace their suspended team mate, the municipal manager. After the co-option they thought the emergency team had the required quorum and authority in terms of sub-rule (c) to make a valid decision for the purpose of opposing these urgent legal proceedings and to take such further action as may be necessary in order to give proper effect to such opposition.

[30] Once the deponent had been brought on board as a substitute for the suspended municipal manager, the mayor sat back, the deponent who was, for all practical intents and purposes a novice in the emergency team forum, swiftly surged forward, took charge of the matter, made and signed sworn statements. He literally played such a leading role as if he was the mayor himself, the leader of the emergency team. He admits that he is in the forefront of things in this case by virtue of the powers delegated to him by the mayor. Both the mayor and the speaker support this claim as does the respondent. It seems he did not usurp the mayor’s authority. The mayor seems to have abdicated his powers in favour of his own nominee.

[31] Mr Vetten submits that the deponent acts in these proceedings as the mayor’s nominee in terms of sub-rule (c). However, Mr Claasen submits that sub-rule (c) does not authorise the mayor to delegate the powers delegated to him. I am persuaded by Mr Claasen’s submission, Mr Vetten’s relied on the following words in sub-rule (c):

"..... and to take further action as may be necessary in order to give proper effect to such opposition"

He argues that these words generously construed give the mayor the power to nominate a nominee and to delegate his powers to such a nominee of his own. I am in respectful disagreement. However, generous I tried to read those words I could find no substance in this language to justify the construction which Mr Vetten tries to place on those words now.

[32] It is crystally clear to me upon proper and careful reading of sub-rule (c) that on 23 July 2001, the municipal council of the Dihlabeng Local Municipality reserved unto itself the prerogative of designating members of its emergency team. As I have pointed out earlier the ordinary emergency team of the Dihlabeng Local Municipality consists of the mayor, the municipal manager and the council speaker. This is the first scheme of things sub-rule (c) envisages. However, sometimes the prevailing circumstances may make it impractical for the ordinary emergency team to function as a unit. The instant case clearly illustrates how the ordinary emergency team may at times be impeded. In such a situation an ad hoc or a special emergency team has to take over. This now is the secondary sphere of designated officials. It is the second scheme which sub-rule (c) envisages. This has to be done by replacing the absent member of the ordinary emergency team by a nominee of the municipal council and not by the nominee of the mayor. Suppose the speaker is abroad and there is an urgent matter to be opposed on behalf of the municipality, in such an event, the mayor, the municipal manager and the council nominee can form a special emergency team. This sub-rule (c) states that the emergency authority is granted to the mayor, the municipal manager and the speaker or its nominee. The emphasis is on the words or its nominee. In my view the mayor had no authority express or implicit to delegate the powers which vests in him to anyone else however, senior such a person might be other than a nominee of the municipal council. Now, if that is indeed the correct legal position, what authority can the mayor of the Dihlabeng Local Municipality have to delegate such awesome responsibility or exclusive powers to a junior subordinate such as an acting municipal manager?

[33] To achieve this practical objective and to obviate similar situations in the future it is prudent and advisable for a municipal council to identify a pool of say three or so capable persons and nominate them as a contingent council nominees who may be used when there is no quorum in their core emergency team. Such substitutes must be nominated by proper council resolution. With the benefit of hindsight in casu I guess such alternatives should also have been nominated way back on 23 July 2001. Ideally this should be done according to their job designations, like the core emergency team. It was not done in the instance case, hence this dilemma. The co-option itself was legally impermissible.

[34] In my view rule 18(c) gave the mayor no power to delegate his delegated powers. He had no power to nominate the deponent as a substitute for the suspended municipal manager. He had no authority in terms of sub-rule (c) to abdicate his responsibilities, to relinquish his pivotal role as the leader of the core emergency team and to delegate to his nominee the powers directly delegated to him without the option of any further delegation. The mayor’s authority to nominate his nominee is limited to the scenario of non-urgent legal proceedings in terms of sub-rule (a) and to sub-rule (a) alone. But this case is about sub-rule (c). Here there is absolutely no room for further delegation of the powers by the mayor. The integrated reading of sub-rule (a) and sub-rule (c) highlights this essential distinction. The respondents’ construction of sub-rule (c) is too extensive and would make the mayor an intruder upon the legitimate province of the municipal council.

[35] The legal author, Baxter: ADMINISTRATIVE LAW (1989) on p 434 writes:

"When power is conferred upon an office or statutory body it is intended that the power should be exercised by that office or body and no one else. The recipient of the power has presumably been chosen for a purpose - for his accountability, expertise, seniority or advantaged position in exercising the power. Should he allow the power to be exercised by someone who was not chosen he will effectively have abdicated his own power and will not have complied with the legislation. The courts will recognize neither his chosen substitute nor any person who has usurped his powers."

In pretty much a similar vein, the legal authors Devenish, Govender and Hulme: ADMINISTRATIVE LAW AND JUSTICE IN SOUTH AFRICA (2001) at paragraph 5 on p 69 have this to say about delegation of administrative authority:

"Power must be exercised in a lawful way in a constitutional state. This requires that it must be exercised by the authority upon whom it is conferred. Unauthorised delegation is administratively invalid because it constitutes a usurpation of parliamentary legislative authority. In a sense unlawful delegation is an abdication of power, which cannot be tolerated in a constitutional state."

I associate myself with the sentiments expressed in the aforegoing two passages.

In SHIDIACK v UNION GOVERNMENT 1912 AD 642 on 648 Innes CJ observed that where the legislature placed upon a specific official the responsibility of exercising a discretion, then that responsibility cannot be vicariously discharged by a different official if the nature of the matter and the language of the section show that discretion requires to be exercised in a judicial spirit or manner.

[36] In casu it is common cause that on 10 March 2003 when the deponent signed the answering affidavit on behalf of the first respondent he was not a designated member of its core emergency team; that when the opposing papers of the first respondent were delivered the municipal council of the first respondent had not nominated another substitute nominee to fill the vacancy created by the applicant’s suspension; that the municipal council had not amended its formal resolution of 23 July 2001 concerning the composition or membership of its core emergency team in terms of rule 18(c) and that the municipal council had not crowned its acting municipal manager as the leader of its core emergency team.

[37] The very fact that the first respondent’s deponent skirts around the source of his alleged authority coupled with the absence of a formal resolution which preceded the signing of the answering affidavit coupled further with the existence of a formal resolution passed by the council of the first respondent in 2001, all these factors tend to stress the deficiency in the authority that the deponent claims he has. Was the deficiency fatal?

[38] Mr Vetten submits that as a form of belts and braces the executive committee of the first respondent held a meeting on 17 March 2003 and expressly ratified the conduct of the mayor, the speaker and the deponent. The council also resolved to proceed with the case and to support the continued opposition to this case by the first respondent.

Mr Claasen, on the other hand, submits that the applicant has been subjected to an administrative action which was not authorised by law. He argued that an unauthorised act was invalid and that an invalid act could not be ratified. A similar argument was raised by the appellant’s counsel in the case of SMITH v KWANONQUBELA TOWN COUNCIL 1999(4) SA 947 (SCA) at paragraph 10. In rejecting the argument Harms JA said:

"The argument, I fear, already breaks down at the first proposition and it becomes unnecessary to consider the others. The launching of legal proceedings is not an administrative act but a procedural one open to any member of the public. Watson apparently believed on insubstantial grounds that he had the necessary authority to act on behalf of the town council. He was wrong. His expressed intention was to act on behalf of the town council and not on his own behalf. It is a general rule of the law of agency that such an act of an `unauthorised agent’ can be ratified with retrospective effect (cf UITENHAGE MUNICIPALITY v UYS 1974(3) SA 800 (E) at 806H-807H)."

For more about the principle of ratification see BAECK & CO SA (PTY) LTD v VAN ZUMMEREN AND ANOTHER 1982(2) SA 112 (WLD) by Goldstone J; MOOSA AND CASSIM NNO v COMMUNITY DEVELOPMENT BOARD 1990(3) SA 175 (AD) at 180H-181C per Nicholas AJA as well as JAGERSFONTEIN GARAGE & TRANSPORT CO v SECRETARY, STATE ADVANCES RECOVERIES OFFICE 1939 OPD 37 on p 46-47 per Fischer J.

[39] On the strength of the aforesaid authorities I have come to the conclusion that subsequent to the invalid act of co-option of the deponent and his unauthorised act of exercising the powers conferred on the mayor, the first respondent ratified the invalid acts of all performed on its behalf for the purpose of opposing these legal proceedings. The resolution of 17 March 2003 constitutes an effective and retrospective ratification by the first respondent of the representative acts which had been done in its name but without its prior authority.

[40] For the reasons advanced above the objection in limine thus falls to be dismissed. I order accordingly. As regards costs, it appears to me that considerations of fairness, equity and justice demand that the first respondent be saddled with the costs order. Bearing in mind the deficiencies in the first respondent’s answering affidavit, the inadequacies of the first respondent’s supplementary answering affidavit and the belated ratification of an extensive web of invalid acts, the first respondent has perforce sought an indulgence from the court. I have already given my reasons why such indulgence ought to be granted. I am of the opinion that the applicant’s objection to the authority of the first respondent’s deponent has been reasonable as was his challenge to the purported decision. In these circumstances the first respondent should be held liable for the payment of the costs of the point in limine. The costs occasioned by the point in limine and those of the substantive application are to be paid by the first respondent.

[41] Accordingly the application is dismissed but the first respondent is hereby ordered to pay the costs thereof including those of 13 December 2002, 20 February 2003, 27 February 2003 and 24 April 2003.

 

__________________

MH RAMPAI, J

 

 

 

On behalf of the Applicant : Adv Claasen Instructed by McIntyre & Van der Post

 

On behalf of the Respondents : Adv Vetten Instructed by Naudes

 

 

NB:

The applicant’s list of authorities and the respondents’ are annexed to this judgment.

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