Independent Municipal and Allied Trade Union (IMATU) v Mase and Others (P116/21) [2022] ZALCPE 39; [2022] 12 BLLR 1107 (LC) (16 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

CASE NO: P116/21

In the matter between :

INDEPENDENT MUNICIPAL AND ALLIED

TRADE UNION ("IMATU")

Applicant

And

THANDO MASE

(cited herein in his capacity as the

Municipal Manager for the Second

Respondent and in his personal capacity)

First Respondent

MHLONTLO LOCAL MUNICIPALITY

Second Respondent

THE SOUTH AFRICAN LOCAL

GOVERNMENT BARGAINING COUNCIL

Third Respondent

SOUTH AFRICAN LOCAL

GOVERNMENT ASSOCIATION

Fourth respondent

SOUTH AFRICAN MUNICIPAL WORKERS UNION

Fifth Respondent

Heard: 11 March 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant's and Respondents' Legal Representative by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 14h00 on 16 March 2022.

JUDGMENT

LALLIE J

[1] The issue for determination at this stage of the proceedings is whether the answering affidavit is properly before court. The

applicant alleges that the deponent to the answering affidavit was not authorised by the second respondent to depose to it. He therefore lacked the necessary locus standi and the answering affidavit stands to be struck out in toto. The issue is raised as a point in limine which is opposed by the second respondent. The basis for opposition is that the first respondent did not need to be authorized in order to attest to the answering affidavit. The lack of authority was, in the second respondent's view irrelevant.

[2] The applicant launched the main application seeking an order for contempt of court against the first respondent for his failure to comply with an arbitration award which had been issued against the second respondent. The first and

second respondent opposed the application. The first respondent deposed to the answering affidavit which incorporated a counter application to have a resolution of the second resolution relevant to the main application reviewed and set aside. The point in limine at hand that the first respondent lacked the necessary locus standi is raised by the applicant in the replying affidavit to the main application.

[3] The applicant's case is that before the answering affidavit was attested to on 10 February 2022, the first respondent had been

suspended by the second with effect from 14 December 2021, his resignation accepted and his services terminated on 28 January 2022.

When he deposed to the answering affidavit on 10 February 2022, he was no longer authored to depose to affidavits or perform any act of behalf of the second respondent. At the time the answering affidavit was attested to, the second respondent had an acting municipal manager who, the applicant submitted, had the necessary authority to attest to affidavits.

[4] The legal basis of the point in limine was challenged by the second respondent on behalf of whom it was submitted that the first respondent did not require the second

respondent's authorization in order to depose to the answering affidavit. The authority to oppose the main application the second

respondent gave to a firm of attorneys was sufficient. The second respondent relied on L I Ganes and Another v Telecom Namibia Limited[1] where the issue was decided as follows:

'[19] The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. In the present case the proceedings were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the respondent.'

[5] In the absence of different authority and reasons for detracting from the authority the second respondent relied on, the authority is binding this court. It states the correct legal position unequivocally and supports the first respondent's version. The argument on behalf of the applicant that the first respondent's allegations in the answering affidavit that he had the necessary authority are untrue cannot assist the applicant. The untrue allegations on which the applicant's attack is mounted do not constitute valid grounds to have the answering affidavit struck out in toto. The applicant conceded that the firm of attorneys which opposed the main application acted with the necessary authority. The applicant therefore did not establish valid grounds to have the answering affidavit struck out. The answering affidavit is therefore properly before court.

[6] In the premises, the following order is made:

Order:

1. The point in limine on locus standi is dismissed.

2. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate JG Grogan

Instructed by

Wheeldon Rushmere & Cole Inc

For the First and Second Respondents:

Advocate Katz SC

Instructed by

Mvuzo Notyesi Incorporated

[1] [2004] 2 All SA 609 at para 19.