South African Municipal Workers Union v Department of Co-Operative Governance, Human Settlements and Traditional Affairs and Others (J 1509/14) [2014] ZALCJHB 246 (10 July 2014)

REPUBLIC OF SOUTH AFRICA

Not reportable

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

JUDGMENT

Case no: J 1509/14

In the matter between:

SOUTH AFRICAN MUNICIPAL

WORKERS UNION..................................................................................................................Applicant

and

DEPARTMENT OF CO-OPERATIVE GOVERNANCE,

HUMAN SETTLEMENTS AND TRADITIONAL

AFFAIRS (MEC: M MAKHURUPETJA N.O.)..........................................................First Respondent

GREATER TUBATSE MUNICIPALITY................................................................Second Respondent

M A MONYEPAO (ACTING

MUNICIPALITY MANAGER)...................................................................................Third Respondent

Heard: 08/07/2014

Delivered: 10/07/2014

Summary: (Urgent application – dismissed for lack of urgency)

LAGRANGE, J

Introduction

[1] This matter was postponed and costs were reserved when the matter was first set down for a hearing on 01 July 2014, before the honourable Justice Lallie, J. The parties’ representatives advised me that the matter could not proceed because the founding papers were missing from the court file. When the matter came before me, indexed founding papers filed on 27 June 2014 were in the court file. On the face of it there is no explanation for their mysterious appearance, but the respondents’ representative Mr Bruinders, SC correctly conceded that the blame for the missing papers did not appear to lie with the applicant, though his instructions were that the respondents had not received a copy of the index to the application from the applicant.

The application

[2] This is an urgent application for an interim order to prevent the first or second respondents from extending the appointment of the third respondent as the acting Municipal Manager of the second respondent as per a resolution of the second respondent on 31 May 2014, pending a final order being granted.

[3] The third respondent’s appointment in that acting capacity has been extended for three months’ at a time a number of times since August 2013. On the face of it, the repeated extensions of the third respondent’s acting appointment since then appear to have been made in breach of s 54A (2a) of the Municipal Systems Act 32 of 2000 (‘the MSA’) which permits a local authority to appoint an acting municipal manager for a period of three months which may be extended in special circumstances by the MEC for local government for a further three months.

[4] The applicant brought an application on an urgent basis seeking essentially the same relief in November 2013 when the third respondent’s acting appointment ending in October 2013 had expired without a further purported renewal in terms of s 54A (2A) of the MSA. The second respondent sought to rectify that by extending the appointment for a further three months on 22 November 2013, shortly before that application was heard. That application was dismissed for lack of urgency.

[5] The respondents contend that the matter is res judicata in the sense that the applicants are seeking equivalent relief on the same grounds for urgent relief as before. Those grounds in summary are that:

5.1 Irreparable harm would be done by perpetuating the unlawful appointment of the third respondent which could have repercussions for decisions made by her that may subsequently be declared null and void;

5.2 The first and second respondents are obliged to comply with the requirements of s 54A(2A) of the MSA;

5.3 The remedy of seeking such relief in the ordinary course would be too late to prevent the harm mentioned.

[6] Ironically, if the applicant had brought an application in the ordinary course in November 2013, and had sought that the enrolment of the matter be prioritised, such an application could well have been heard by the time these current urgent proceedings for interim relief had been launched.

[7] The challenge to legal standing of the third respondent’s appointment as acting Municipal Manager is in essence no different to what it was in November 2013, save only that the first and, or alternatively, second respondents have purportedly extended her appointment since then also purportedly in reliance on s 54A(2A). Similarly, the basis for seeking urgent relief is no different.

[8] In the circumstances, I am satisfied that there is no greater urgency which the applicant has demonstrated for launching this application now than there was in November 2013, and that the urgency is self-created as the applicant could have launched an application in the ordinary course at that stage which ought to have been ripe for a hearing by now.

[9] On the question of costs, I do not believe that the applicant is at fault for the matter not proceeding last week. The same cannot be said of the proceedings on 8 July 2014 and having had sight of the respondents’ answering papers, the application should have been withdrawn.

Order

[10] The application is dismissed for lack of urgency

[11] The applicant must pay the respondents’ costs of opposing the application excluding the costs of appearing on 1 July 2014.

_______________________

R LAGRANGE, J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: Adv E van AS instructed by Maenetja Attorneys

FIRST RESPONDENT: Bruinders SC instructed by Verveen Attorneys