Magodongo v Khara Hais Municipality and Others (C261/17, C756/16) [2017] ZALCCT 55; (2018) 39 ILJ 406 (LC) (14 November 2017)

Magodongo v Khara Hais Municipality and Others (C261/17, C756/16) [2017] ZALCCT 55; (2018) 39 ILJ 406 (LC) (14 November 2017)

The Court found that the founding affidavit was substantially compliant with the regulations governing affidavits, as the deponent initialled each page in the presence of the commissioner of oaths and the oath was properly administered. The technical irregularity of placing initials below the commissioner's signature did not render the affidavit invalid, as form should not be elevated over substance. However, the Municipality failed to provide evidence of a council resolution or written delegation authorising the municipal manager to institute the review application. The Court held that, while a municipal manager may depose to affidavits without a council resolution, the authority to...

Citation
[2017] ZALCCT 55
Parties
Applicant: Siphiwe Magodongo; Respondent: //Khara Hais Municipality; Respondent: Gerald Jacobs N.O.; Respondent: SALGBC
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
14 November 2017
Case Number
C261/17, C756/16
Procedural Posture
Review Application / Interlocutory Application; Points in Limine
Outcome
The review application is dismissed due to lack of authority by the Municipality to institute proceedings.
Judges
Anton J Steenkamp
Legal Topics
Authority to Institute Proceedings, Substantial Compliance With Regulations, Review of Arbitration Award, Affidavit Formalities
Labour Law Civil Procedure Authority to Institute Proceedings Substantial Compliance With Regulations Review of Arbitration Award Affidavit Formalities

Case Brief

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Parties

Siphiwe Magodongo

Applicant

//Khara Hais Municipality

Respondent

Gerald Jacobs N.O.

Respondent

SALGBC

Respondent

Procedural Posture

Review Application / Interlocutory Application; Points in Limine

Legal Issues

  1. 1 Whether the founding affidavit in the review application was properly deposed to and complies with the relevant regulations.
  2. 2 Whether the Municipality was authorised to launch the review application without a council resolution or written delegation.
  3. 3 Whether substantial compliance with the regulations governing affidavits is sufficient for admissibility.

Ratio Decidendi

The Court found that the founding affidavit was substantially compliant with the regulations governing affidavits, as the deponent initialled each page in the presence of the commissioner of oaths and the oath was properly administered. The technical irregularity of placing initials below the commissioner's signature did not render the affidavit invalid, as form should not be elevated over substance. However, the Municipality failed to provide evidence of a council resolution or written delegation authorising the municipal manager to institute the review application. The Court held that, while a municipal manager may depose to affidavits without a council resolution, the authority to...

Court Disposition

The review application is dismissed due to lack of authority by the Municipality to institute proceedings.

Orders

  • The application for review in case number C 756/2016 is dismissed.
  • Mr Magodongo must return to work by 4 December 2017.