Blaai-Mokgethi v Speaker of Council: North West 405 (Ventersdorp/Tlokwe) Local Municipality and Others (UM03/2017) [2017] ZANWHC 57 (3 August 2017)

IN THE NORTH WEST HIGH COURT, MAFIKENG

Reportable:

NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

CASE NO: UM03/2017

In the matter between:

DR NOMATHEMBA BLAAI-MOKGETHI

Applicant

and

THE SPEAKER OF COUNCIL: NORTH WEST 405 1st Respondent

(VENTERSDORP / TLOKWE) LOCAL

MUNICIPALITY)

THE EXECUTIVE MAYOR OF NORTH WEST 405 2nd Respondent

THE COUNCIL OF NORTH WEST 405

3rd Respondent

NORTH WEST 405 (VENTERSDORP / TLOKWE)

4th Respondent

LOCAL MUNICIPALITY)

THE MEC FOR THE NORTH WEST PROVINCIAL

5th Respondent

LOCAL GOVERNMENT AND HUMAN SETTLEMENT

DATE OF HEARING & JUDGMENT : 19 JULY 2017

REASONS FOR JUDGMENT

: 03 AUGUST 2017

COUNSEL FOR THE APPLICANT

: ADV.WILLUS

COUNSEL FOR 3RD – 4TH RESPONDENTS : ADV. HITGE

COUNSEL FOR 5TH RESPONDENT : ADV. SCHOLTZ

REASONS FOR JUDGMENT

HENDRICKS J

Introduction

[1] On the 19th July 2017 after listening to oral submissions made on behalf of the applicant, the third, fourth and fifth respondents respectively, I granted the following order:

“1. The application is dismissed with costs;

2. If reasons are required, same must be applied for within ten (10) days of the date of this order.”

On 31st July 2017 a request for reasons was filed with the Registrar of this Court, which found its way to my chambers on the 01st August 2017. Here follows the reasons for the order I made.

[2] The applicant launched an application in two parts (A and B) under case number UM03/17 on the 17th July 2017, seeking the following relief:

“Part A

1. Dispensing with the forms and service provided for in the Uniform Rules of Court and disposing of this application as one of urgency in terms of Rule 6(12) in accordance with the procedures set out hereinbelow.

2. Pending the outcome of Part B below, paragraphs 2.1 and 2.3 below shall operate as an interim interdict and Court order.

2.1 The First to Fourth Respondents are interdicted and restrained from acting upon the letter from the office of the Fifth Respondent

addressed to and received by the Second Respondent in July 2017 and which is annexed to the founding affidavit marked “FA9”.

2.2 Interdicting and restraining the First to Fourth Respondents from tabling, discussing, deliberating and/or deciding the validity of the Applicant’s employment and contract with the Fourth Respondent.

2.3 Directing the Fifth Respondent to formally withdraw her letter addressed to and received by the Second Respondent in July 2017 and which is annexed to the founding affidavit marked “FA9”.

3. Granting the Applicant leave to supplement her founding papers within tem (10) Court days from the granting of an order under Part A.

4. That costs be reserved for determination under Part B save in the event of opposition in which event any parties opposing Part A be jointly and severally liable.

5. Further and/or alternative relief.”

Part B

1. Declaring that the applicant is the appointed Municipal Manager of the Fourth Respondent, appointed to such position by the Third Respondent on or about 6 December 2016 and so appointed by contract according to the conditions and terms as stipulated in the contract concluded between the Applicant and the Third Respondent on or about 1 July 2014 read together with the Third Respondent’s Resolution on item C46/2016-12-06 taken on 6 December 2016, which contract between the Applicant and the Third Respondent is valid and extent on its terms until 12 months after the date of publication of the 2021 general election results in the Government Gazette alternatively until 30 June 2019.

2. Directing that the Fourth Respondent comply with the Applicant’s Contract of employment and interdicting and restraining the First to Fifth Respondents from bringing about the termination of the Applicant’s employment without due process and compliance with the terms of her contract of employment.

3. That the Fourth Respondent pay the Applicant’s costs save in the event of opposition in which event the parties opposing be held jointly and severally liable for the Applicant’s costs.

4. Further and/or alternative relief.”

[3] The matter was set down for hearing on Tuesday 18th July 2017 at 14H00. Seeing that the matter has become opposed, it stood down until 12:00 on the 19th July 2017, in order to allow the respondents the opportunity to file opposing papers.

[4] The third and fourth respondents raised as a point in limine the lack of jurisdiction. This is premised on the fact that the applicant elected to launch this “application at the North West Division of the High Court, Mahikeng, when in fact the parties intended to be interdicted by means of prayers 2.1 and 2.2 are residing in Potchefstroom and the seat of council is also in Potchefstroom, which is under the jurisdiction of the High Court of South Africa, North Gauteng, sitting in Pretoria”.

[5] Mr Willus on behalf of the applicant indicated at the hearing of the matter that the applicant is no longer pursuing paragraph 2.3 of Part A of the Notice of Motion. The effect hereof is that no relief is claimed against the fifth respondent, whose offices are situated in Mahikeng.

[6] It is common cause that Potchefstroom does not resort under the jurisdiction of the North West Division of the High Court but rather under the jurisdiction of the North Gauteng Division. Due to the lack of jurisdiction over this matter, this Court could not entertain this matter because it was in the incorrect or wrong forum. No other aspect relating to this matter could have been entertained by this Court due to the lack of jurisdiction.

[7] It is for this reason that I dismissed the application with costs.

____________________

R D HENDRICKS

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG