South African Municipal Workers Union v Kheis Municipality and Others (908/2025) [2025] ZANCHC 44 (23 May 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case Number: 908/2025
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In the matter between:
|
SOUTH
|
APPLICANT
|
|
and
|
|
|
!KHEIS
|
1ST
|
|
THE
|
2ND
|
|
THE
|
3RD
|
|
MEC
CO-OPERATIVE
AND
|
4TH
|
|
THE
CO-OPERATIVE
TRADITIONAL
|
5TH
|
|
THE
GOVERNANCE
|
6TH
|
|
THE
|
7TH
|
Heard on
: 25
April 2025
Delivered on :
23 May 2025
Coram
:
Olivier AJ
Summary
: Urgent
application – declaratory and interdictory relief sought
against provincial and national executive in terms of section
139 of
Constitution – payment of salaries of members of applicant
sought from 1st respondent –
established principle confirmed – applicant must make out case
for urgency in founding papers –
application not urgent –
practical considerations and nature of application dictate that
application be dealt with nevertheless
– initial relief, bar
for non-payment of salaries, abandoned by applicant – new
relief sought in heads of argument
and during argument – new
relief, not canvassed in founding papers – applicant seeks
order for new relief in terms
of provisions of section 172 of
Constitution, alternatively in terms of further and/or alternative
relief – legal principle
confirmed – party not entitled
to relief under further and/or alternative relief if relief is not
clearly indicated in the
founding affidavits and is not established
by satisfactory evidence on papers – section 172 of
Constitution not be interpreted
as to afford a court carte blanche to
make orders for relief that is not canvassed in the founding papers –
court has jurisdiction
to deal with non-payment of salaries of
members of applicant – sufficient allegations made in founding
affidavit upon which
the jurisdiction of the court may be determined.
ORDER
In the result, the
following order is made:
1.
That the 1st
respondent is to immediately make payment of the salaries of the
members of the applicant for the months of February 2025 and March
2025 and to continue making payment of the salaries of the members of
the applicant as it falls due;
2.
That the applicant and the 4th
respondent are each to pay its own costs in this application, the
costs to be determined according to scale “B” as
referred
to in rule 69(7) read with rule 67A(3) of the Uniform Rules of Court.
JUDGMENT
OLIVIER AJ
INTRODUCTION:
1.
The main protagonists in this unfortunate
saga involving a municipality that is, like so many others in our
country, in financial
distress, are the South African Municipal
Workers Union (herein after referred to as “SAMWU”
or “the applicant”),
the !Kheis Municipality situated in Groblershoop, Northern Cape
Province (herein after referred to as “the
Municipality”), the Premier of
the Northern Cape (“the Premier”)
and the MEC of the Northern Cape: Department of Co-Operative
Governance, Human Settlements and Traditional Affairs (“the
MEC”).
I will henceforth and
where necessary refer to the Department of Co-Operative Governance,
Human Settlements and Traditional Affairs
as “COGHSTA”.
2.
SAMWU approached this court on an urgent
basis with an application that was premised on the allegation that
the Municipality was
in serious and persistent material breach of its
obligations to provide basic services and to meet its financial
commitments as
a result of a crisis in its financial affairs and that
the Municipality was in serious and urgent need of rescuing.
3.
The application was formally opposed by the
MEC and initially also by the 5th
and 6th
respondents but at the commencement of proceedings on 25 April 2025,
I was informed by Mr. Davis who appeared on behalf of these
respondents, that he was instructed to withdraw the opposition of the
application on behalf of the 5th
and 6th
respondents.
4.
The 1st
to 3rd
and 7th
respondents did not oppose the application and argument was therefore
heard on behalf of SAMWU and the MEC only.
5.
Counsel for SAMWU and the MEC presented me
with comprehensive heads of argument for which I am thankful.
THE RELIEF SOUGHT:
6.
In its notice of motion which was filed on
9 April 2025, SAMWU alleges that the Municipality was in serious and
persistent material
breach of its obligations to provide basic
services and to meet its financial commitments as a result of a
crisis in its financial
affairs and moved for an order which may be
summarised as follows:
6.1
That it be declared that the 3rd respondent cannot,
alternatively has not and does not, further alternatively has not and
does not adequately exercise the powers,
alternatively perform the
functions referred to in section 139 of the Constitution of the
Republic of South Africa, 1996 (herein
after referred to only as “the
Constitution”);
6.2
That it be declared that the failure of the national
executive as
contemplated in section 139 of the Constitution to intervene in terms
of section 139(7) of the Constitution, constitutes
a breach of
section 139(7) of the Constitution;
6.3
That, pending the resolution of the financial crisis
of the
Municipality and the securing of the ability of the Municipality to
meet its obligations, the national executive is directed
to forthwith
invoke section 139(7) of the Constitution in respect of the
Municipality and to exercise the powers and perform the
functions
referred to in section 139(5) of the Constitution and in this regard
to inter alia:
6.3.1
Implement a recovery plan aimed at securing the ability of
the
Municipality to meet its obligations to provide basic services;
6.3.2
Approve a temporary budget or revenue raising measures or
any other
measures to give effect to the above recovery plan; and
6.3.3
Assume responsibility for the implementation of the recovery
plan;
6.4
That in the alternative to the above and pending the
resolution of
the financial crisis of the Municipality and the securing of the
ability of the Municipality to meet its obligations,
the 3rd
respondent be directed to forthwith invoke and exercise the powers
and perform the functions referred to in section 139(5) of the
Constitution, and in this regard to:
6.4.1
Implement a recovery plan aimed at securing the ability of
the
Municipality to meet its obligations to provide basic services;
6.4.2
Approve a temporary budget or revenue raising measures or
any other
measures to give effect to the above recovery plan; and
6.4.3
Assume responsibility for the implementation of the recovery
plan;
6.5
That in the alternative to the above and pending the
resolution of
the financial crisis of the Municipality and the securing of the
ability of the Municipality to meet its obligations,
alternatively
the successful and effective invocation of and exercise of the powers
and functions by the 3rd respondent as envisaged in
section 139(5) of the Constitution, further alternatively the
successful and effective intervention
of the National Executive as
envisaged in section 139(7) of the Constitution, the 3rd
respondent is directed to forthwith take all steps necessary and
assume responsibility for the restoration of and the provision
of
basic municipal services to the community of the Municipality;
6.6
That in the alternative to all of the above and pending
the
resolution of the financial crisis of the Municipality and the
securing of the ability of the Municipality to meet its obligations,
the 3rd respondent, alternatively the national executive
be ordered and directed to immediately appoint and instruct an
administrator with
such powers and duties to ensure that the
Municipality complies with its financial obligations and to ensure
the restoration of
basic municipal services to the community of the
Municipality;
6.7
That, in the event of the court finding that the above
relief is for
some or other reason not appropriate, the court shall grant an order
that is just and equitable as envisaged in section
172 of the
Constitution and which has the remedial effect of the restoration of
basic municipal services to the community of the
Municipality and
thereafter the continued functionality of the Municipality, the
resolution of the financial crisis in the affairs
of the Municipality
and the securing of the ability of the Municipality to provide basic
services, alternatively that the court
grant an order that is just an
equitable as envisaged in section 172 of the Constitution which has
the remedial effect that alleviates
the constitutional infringements
set out in the founding affidavit;
6.8
That the applicant be granted leave to supplement its
founding
affidavit, to amend its notice of motion and to seek such further
relief as may be necessary should further breaches,
and/alternatively
continued breaches, in relation to the provision of basic municipal
services to the communities and/or employees
and/or creditors of the
Municipality occur after the granting of the order prayed for,
alternatively should the applicant be of
the view that the
respondents have failed to comply with the order of court;
6.9
That the Municipality be ordered to immediately make
payment to the
members of the applicant of their salaries for the months of February
2025 and March 2025 and to continue making
payment of such salaries
as it falls due; and
6.10
That those respondents who elect to oppose the application, be
ordered
to pay the costs of same.
I will henceforth and
only in an attempt to avoid possible confusion, refer to the above
relief that was sought by way of SAMWU’s
notice of motion of
April 2025, as “the Original Relief”.
7.
In his heads of argument on behalf of
SAMWU, which were filed 2 (two) days prior to the application being
heard, Mr. du Preez indicated
that SAMWU will no longer be seeking
the Original Relief, but will ask the court to consider affording
them the following relief:
7.1
That it be declared that the Municipality, as a result
of a crisis in
its financial affairs, is in serious and persistent material breach
of its obligations to provide basic services
and to meet its
financial commitments and is unable to meet its obligations and
financial commitments;
7.2
That the Premier be directed to forthwith take the steps
prescribed
by section 139 of the Local Government: Municipal Finance Management
Act[1] (herein after referred to
as “the MFMA”);
7.3
That SAMWU be granted leave to supplement its founding
affidavit, to
amend its notice of motion and to seek such further relief as may be
necessary should further breaches, and/alternatively
continued
breaches, in relation to the provision of basic municipal services to
the communities and/or employees and/or creditors
of the Municipality
occur after the granting of the order prayed for;
7.4
That the Municipality be ordered to immediately make
payment to
SAMWU’s members of their salaries for the months of February
2025 and March 2025 and to continue making payment
of such salaries
as it falls due; and
7.5
That those respondents who elect to oppose the application,
be
ordered to pay the costs of same.
I will henceforth refer
to the relief that the applicant seeks as referred to in its heads of
argument, as “the New Relief”.
8.
Mr. Mthombeni who appeared on behalf of the
MEC, unsurprisingly took umbrage with the above abandonment of the
Original Relief and
argued that the applicant is effectively
attempting to advance a new case in its heads or argument and to
develop this new case
during argument on behalf of the applicant.
I will deal with the
arguments on behalf of the respective parties in this regard herein
below in more detail.
9.
It should be noted that SAMWU did not file
an affidavit in reply to the answering affidavit of the MEC, but at
the commencement
of the proceedings Mr. du Preez advised that he was
happy to proceed with the matter sans
a replying affidavit and that he will argue the case for SAMWU on the
papers as it stood at the time.
10.
I am required to determine the following
issues:
10.1
Whether this application is in fact urgent;
10.2
Whether it is competent for this court to make an order on the terms
as set out in the New Relief;
10.3
Whether this court has the required jurisdiction to order the
Municipality
to see to the payment of the salaries of SAMWU’s
members; and
10.4
Whether SAMWU had made out a case for any of the relief that it
seeks.
URGENCY:
11.
It
is common cause and warrants very little discussion that it is
expected of any applicant in motion proceedings to make out a
case
for the relief that such applicant seeks in the founding papers[2]and
that a court will only in exceptional circumstances allow an
applicant to make out or to supplement its case in his/her replying
affidavit.[3]
12.
The above holds equally true in the case of
applications brought on an urgent basis where the uniform rules of
court (“the Rules”)
provide that in every application brought on an urgent basis an
applicant is supposed to (in his/her founding affidavit):
“… set
forth explicitly the circumstances which is averred render the matter
urgent and the reasons why the applicant claims that the
applicant
could not be afforded substantial redress at a hearing in due
course.”[4]
13.
It
was held in East
Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granite (Pty)
Ltd & Others[5]
as follows:
“… the
procedure set out in rule 6(12) is not there for the taking. An
applicant has to set forth explicitly the circumstances which
he
avers render the matter urgent.”[6]
14.
In its founding affidavit and in support of
its contention that this application is urgent, SAMWU relies on the
following allegations:
14.1
That its members have received only one salary since January 2025 and
that the Municipality had been in breach of its obligations in this
regard to its employees;
14.2
That SAMWU’s members have been severely prejudiced by the
Municipality’s
failure to make payments towards pension fund
and medical aid contributions which may potentially prejudice its
members;
14.3
That it cannot be expected of SAMWU members to continue to render
services
under these circumstances;
14.4
That, due to the above, the members of SAMWU are unable to provide
for
their families and also run the risk of having their vehicles and
homes repossessed;
14.5
That the urgent remedial measures sought by way of the application
are
aimed at addressing and remedying institutional dysfunction which
prejudices the members of SAMWU as well as the broader community;
and
14.6
That none of the respondents stand to be prejudiced by the relief
sought
since the Municipality is unable to meet its financial
obligations and urgent intervention is warranted.
15.
It is apposite to mention at this stage
that, in an attempt to resolve/solve its financial distress, the
Municipality had adopted
a financial recovery plan during January
2022 with the specific purpose of addressing the underlying and
ongoing financial crisis
at the Municipality.
16.
The resolution taken by the council of the
Municipality to adopt and implement a financial recovery plan as well
as the financial
recovery plan of January 2022 (herein after referred
to as “the 2022 FRP”)
that was so adopted, were attached to the MEC’s answering
affidavit and it remains a mystery why it did not form
part of
SAMWU’s founding papers and why the existence of the 2022 FRP
was not mentioned in said founding papers.
The existence of the 2022
FRP was not denied by SAMWU.
17.
SAMWU furthermore also failed to mention
that they were in fact part and parcel of the process which lead to
the adoption of the
2022 FRP which means that they must have been
aware of the ongoing financial crisis at the Municipality since at
least January
2022.
18.
SAMWU also failed to mention that they had,
by way of media statements in 2024 already, threatened to take the
Municipality to court
for the fact that salaries for December 2023
were not paid.
19.
The above failures by SAMWU were pointed
out in the answering affidavit deposed to by the MEC and sans
a replying affidavit from SAMWU, these failures were never properly
explained under oath by SAMWU.
20.
Mr. Mthombeni argued that the matter was
not urgent for the reason that SAMWU had known for quite some time of
the financial difficulties
experienced by the Municipality and of the
fact that (specifically) pension fund contributions were not paid and
he further argued,
based on the afore-said, that any urgency that
might exist, was in fact self-created.
21.
Mr. Mthombeni urged me to consider that
this application was lodged only on 9 April 2025 with extremely
truncated time periods being
set whilst SAMWU had been aware of the
issues at the Municipality since 2022.
I have to agree with Mr.
Mthombeni in this regard.
22.
Although the fact that salaries of members
of SAMWU were not paid for January to March 2025 (the employees did
in fact receive their
salaries for January 2025 but only during March
2025) could contribute to the application being considered urgent,
this application
could have and should have been brought at an
earlier stage.
SAMWU did not provide any
proper explanation why this application was not lodged during
February 2025 or during early March 2025
if SAMWU viewed the
non-payment of salaries in such a serious light and it appears that
SAMWU only decided to approach this court
when their members really
started to feel the pinch.
23.
I
am consequently of the view that this application should in fact have
been removed from the urgent roll with costs to be paid
by SAMWU, but
I align myself, in this instance, with the dictum
in Windsor
Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd and Others[7]
where the learned Brooks AJ held as follows:
“… I
am of the respectful view that the very practical considerations of
factors such as the incurring of unnecessary duplicated case
preparation and presentation procedures, with their concomitant
increase in already substantial legal costs, and the undesirable
duplication of the requirement of the attention and preparation of
more than one court …must be weighed against any apparent
prejudice to a respondent who has been brought to court on a
truncated timeframe.”[8]
24.
It
has been held fairly recently that where expediency calls therefore,
a matter may be entertained despite a material non-compliance
with
the Rules.[9]
25.
In view of the above I deem it unnecessary
to burden another court with this application in circumstances where
the papers have
been read and where the parties have had the
opportunity to fully present their cases on paper as well as during
argument and I
hold the view that practical considerations as well as
the nature of the matter, dictate that this application be dispensed
with.
THE NEW RELIEF SOUGHT:
26.
Mr. du Preez argued that SAMWU is entitled
to the New Relief based on the wording of prayer 4 of the notice of
motion of April 2025
which states as follows:
“THAT
in the event that the Court finds that the remedies sought by the
Applicant are for any reason not appropriate, the Court grant
an
order that is just and equitable as envisaged in section 172 of the
Constitution which has the remedial effect of the restoration
of
basic municipal services to the community of the Municipality and
thereafter the continued functionality of the Municipality,
the
resolution of the crisis in the financial affairs of the Municipality
and the securing of the ability of the Municipality to
meet its
obligations and to provide basic services, alternatively the Court
grant an order that is just an equitable as envisaged
in section 172
of the Constitution which has the remedial effect that alleviates the
constitutional infringements set out in the
founding affidavit
hereto.”
27.
Mr. du Preez submitted that the above
prayer contained in the notice of motion, empowers this court to
grant an order in terms of
the New Relief sought if regards are also
to be had to the provisions of section 172 of the Constitution.
28.
It should be reiterated, at the risk of
repeating myself, that the New Relief that SAMWU now seeks, is only
referred to in their
heads of argument and in essence boils down to
an order which would compel the Premier to exercise the powers
granted to him in
terms of section 139 of the MFMA.
It should also be pointed
out that the Original Relief does not refer to the Premier and no
relief is sought against the Premier
in his official or any other
capacity in terms of the Original Relief.
29.
Mr. Mthombeni argued that the court should
not consider the New Relief now prayed for, since SAMWU always had
the intention to approach
the court with an application pertaining to
the payment of its members’ salaries and that the initial
reliance on the alleged
breach/violation of the provisions of the
Constitution, was merely an attempt to get the application heard on
an urgent basis.
30.
Mr. Mthombeni contended that SAMWU should
be held to its initial papers and that it should then be found that
SAMWU had failed to
make out a case for the Original as well as for
the New Relief and that the application should be dismissed with
costs on a punitive
scale on that basis alone.
31.
Section 172 of the Constitution deals with
the powers of courts in constitutional matters and states as follows:
“(1)
When deciding a constitutional matter within its power, a court –
(a) Must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its
inconsistency; and
(b) may
make any order that is just and equitable, including –
(i)
an order limiting the retrospective
effect of the declaration of invalidity; and
(ii)
an order suspending the declaration
of invalidity for any period and on any conditions, to allow the
competent authority to correct
the defect.
(2) (a)The Supreme
Court of Appeal, the High Court of South Africa or a court of similar
status may make an order concerning
the constitutional
invalidity of an Act of Parliament, a provincial Act or any conduct
of the President, but an order of constitutional
invalidity has no
force unless it is confirmed by the Constitutional Court.
(b)
A court which makes an order of constitutional invalidity may grant a
temporary interdict or other
temporary relief to a party, or may
adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of
that Act or conduct.
(c)
National legislation must provide for the referral of an order of
constitutional invalidity
to the Constitutional Court.
(d)
Any person or organ of state with a sufficient interest
may appeal, or apply, directly to the Constitutional Court
to confirm
or vary an order of constitutional invalidity by a court in terms of
this subsection.”
32.
In its founding affidavit SAMWU refers the
reader to various provisions of the MFMA as well as to various
provisions of the Constitution,
but fails to refer to or deal with
section 172 of the Constitution and the powers of a court and
specifically this court, to make
an order as sought for by way of the
New Relief in terms of the provisions of the said section 172
especially in circumstances
such as these where the New Relief was
only canvassed in SAMWU’s heads of argument and during argument
on behalf of SAMWU.
33.
Mr.
du Preez, with reference to D.D
v I.L and Another[10]
intimated that I may also consider granting the New Relief under
“further
and/or alternative relief”
as moved for in the notice of motion.
34.
In
Port
Nolloth Municipality v Xhalisa and Others; Luwalala and Others v Port
Nolloth Municipality[11]
where the court was confronted with the right of a municipality to an
order to further and/or alternative relief, it was held as
follows:
“Such
a prayer can be invoked to justify or entitle a party to an order in
terms other than that set out in the notice of motion
… where
that order is clearly indicated in the founding (and other)
affidavits … and is established by satisfactory
evidence on
the papers…Relief under this prayer cannot be granted which is
substantially different to that specifically
claimed, unless the
basis therefore has been fully canvassed, viz the party against whom
such relief is to be granted has been
fully apprised that relief in
this particular form is being sought and has had the fullest
opportunity of dealing with the relief.”[12](My
omissions).
35.
In
Somali
Association of South Africa and Others v Refugee Appeal Board and
Others[13]
the learned Navsa ADP, in a unanimous judgment, refused to grant
further and/or alternative relief, stating as follows:
“… it
is unfair and unprecedented for a litigant to seek extensive
substantive relief not foreshadowed in the notice of motion,
especially
when what is sought is not dealt with on affidavit, thus
not providing an opponent an opportunity to deal with it.”[14]
36.
I have already pointed out herein above
that, in terms of the Original Relief as set out in the notice of
motion, relief was primarily
sought against the national and/or the
provincial executive and that the Premier was not mentioned in either
his official capacity
or in any other capacity.
37.
The applicant now, in terms of the New
Relief, seeks substantive relief against the Premier which was not
foreshadowed in the notice
of motion and which was not dealt with in
the founding affidavit of SAMWU.
This last-minute decision
by SAMWU to actively involve the Premier in the proceedings without
alerting the Premier to the fact,
is in my view opportunistic and
unfair towards the Premier.
38.
The argument of Mr. du Preez that
sufficient reference was made in the founding affidavit to the
provisions of section139 of the
Constitution as well as to section
139 of the MFMA in order to justify the New Relief sought against the
Premier does in my view
not hold water.
39.
I
have already pointed out herein above that an applicant has the
obligation to make out a case for the relief that he/she seeks
by way
of his/her founding papers and it is apposite to quote the learned
Caney J where he stated in Bayat
and Others v Hansa and Another[15]
as follows:
“… an
applicant for relief must (save in exceptional circumstances) make
out his case and produce all the evidence he desires to use
in
support of it, in his affidavits filed with the notice of motion …
and is not permitted to supplement it in his replying
affidavits …
still less make a new case in his replying affidavits.”[16]
40.
The
above, in my view, also holds true for an applicant attempting to
make out a new case in his/her heads of argument and during
the
actual argument of the matter.[17]
41.
I could furthermore find no authorities,
nor was I referred to any, which authorises me to make an order for
the New Relief sought
in terms of the provisions of section 172 of
the Constitution and I hold the view that section 172 of the
Constitution should in
any event not be interpreted as to afford a
court carte blanche
to make orders for relief that is not canvassed in the founding
papers.
42.
In view of the above, I am consequently not
prepared to grant SAMWU the relief as is set out in paragraphs 7.1 to
7.3 herein above.
43.
In as far as the payment of salaries to
SAMWU’s members is concerned, it is contended in the founding
affidavit that the said
members of SAMWU had not been paid their
salaries for February and March 2025 (salaries for January 2025 were
apparently paid during
March 2025) which, as was already alluded to
herein above, severely prejudices these members and their families.
44.
It was never denied by the Municipality or
by the MEC in his answering affidavit that the Municipality was
experiencing financial
difficulties (to put it mildly) and that
salaries of members of SAMWU were not paid for February 2025 and
March 2025.
45.
My primary concern with the fact that SAMWU
approaches this court (in terms of both the Original as well as the
New Relief) for
the payment of the salaries of the SAMWU members was
whether this court has the necessary jurisdiction to make such an
order, since
the issue of jurisdiction was also not pertinently
raised in SAMWU’s founding papers and since the non-payment of
employees’
salaries is in essence a labour issue that should be
dealt with in terms of the mechanisms created by the relevant labour
laws.
46.
I
shared my concerns in this regard with Mr. du Preez who argued that
this court may assume that it has the required jurisdiction
in terms
of the provisions of section 77 of the Basic Conditions of Employment
Act (“the
BCEA”)[18].
47.
It is trite that section 77(3) of the BCEA
confers jurisdiction on the civil courts (concurrently with the
labour court) “… to hear and
determine any matter concerning a contract of employment,
irrespective of whether any basic condition of employment
constitutes
a term of that contract.”
48.
Mr. du Preez argued that a reasonable
inference may be drawn from the founding papers that the members of
SAMWU who are employees
of the Municipality and who have not been
paid their salaries, do have valid contracts of employment with the
Municipality, the
terms of which were breached by the Municipality by
reason of the non-payment of salaries and that it was therefore not
necessary
to specifically plead this fact in the founding affidavit.
49.
Mr. du Preez furthermore contended that it
is not necessary for an applicant to specifically plead the fact that
a court has jurisdiction
as long as the founding papers contain
sufficient allegations upon which the jurisdiction of the court may
be determined.
50.
Mr. Mthombeni did not argue the possible
lack of jurisdiction of this court to grant an order for the payment
of salaries with any
amount of vigour.
51.
The
question therefore is whether SAMWU has managed to satisfy the onus
on it to establish that this court has jurisdiction to grant
an order
to the effect that the SAMWU members’ salaries should be paid
and whether sufficient facts were set out in its founding
affidavit
to justify a conclusion that this court indeed has this
jurisdiction.[19]
52.
In
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others[20]
the following was stated:
“It
has always been the practice of the Courts in South Africa to strike
out matter in replying affidavits which should
have appeared in petitions or founding affidavits, including facts to
establish locus standi or the jurisdiction of the Court.”[21]
(My underlining).
53.
In its founding affidavit, SAMWU makes no
mention of the jurisdiction of this court and sets out no grounds as
to why this court
is clothed with the necessary jurisdiction to hear
the application and specifically deal with the issue regarding the
non-payment
of salaries to the members of SAMWU, but the following
relevant allegations are made in the founding affidavit:
“… SAMWU
represents at least 43 employees
that work for the Municipality.”
and further:
“The
Municipality has been unable to timeously and consistently pay
employee salaries.”
and further:
“The
principal obligation on an
employer is to pay its employees its salaries. The Municipality has
been in constant breach of this obligation.”(My
underlinings).
54.
The afore-said allegations made by SAMWU in
its founding affidavit were not seriously denied by the MEC and it is
interesting to
note that the existence of employment contracts,
alternatively valid employment contracts between the Municipality and
the members
of SAMWU was never denied.
55.
I am consequently willing to accept, based
on what has been stated in the founding affidavit and based on what
has not been denied,
that valid contracts of employment between the
members of SAMWU and the Municipality do in fact exist.
56.
Payment of remuneration for services
rendered is an essential term of any contract of employment whether
in writing or not and I
am consequently willing to accept that the
underlying facts as set out in the founding affidavit, in as far as
the non-payment
of salaries are concerned, do in fact support the
argument by Mr. du Preez that this court does have the necessary
jurisdiction
to determine the issue pertaining to the non-payment of
the salaries of the SAMWU members.
57.
It
is trite that, as long as an employee tenders his/her services to the
employer, such employee is entitled to be paid his/her
earnings and
other benefits as and when they are due under the applicable
contract, sectoral determination or collective agreement.[22]
58.
The undisputed failure by the Municipality
to make payment of the salaries of the SAMWU members in the present
matter, despite continuous
tendering of services by such employees,
constitutes a breach of a material term of the employment contracts
between the parties
and should be frowned upon.
59.
It is not acceptable to merely shrug your
shoulders and argue, as was done on behalf of the MEC, that there is
not sufficient money
to pay these salaries and that salaries will, in
terms of the 2022 FRP that is in place, be paid eventually but that
it will take
some time.
60.
It is not in contention that the 2022 FRP
has been in place to attempt to resolve the financial crisis at the
Municipality since
2022 and I hold the view that it is time to
revisit the 2022 FRP in order to avoid situations such as non-payment
of salaries of
employees.
COSTS:
61.
In view of the order that I will be making,
I am of the view that both parties have had success and failure in as
far as the outcome
of the matter is concerned and I am therefore not
prepared to mulct one party with the costs of this application.
62.
I am also of the view that, despite what
has been argued on behalf of both parties, this application is not
complex enough to warrant
costs being determined on anything else by
scale “B” as referred to in rule 69(7) read with rule
67A(3) of the Uniform
Rules of Court.
ORDER:
63.
In view of all of the above, I make the
following order:
1.
That the 1st
respondent is to immediately make payment of the salaries of the
members of the applicant for the months of February 2025 and March
2025 and to continue making payment of the salaries of the members of
the applicant as it falls due; and
2.
That the applicant and the 4th
respondent are each to pay its own costs in this application, the
costs to be determined according to scale “B” as
referred
to in rule 69(7) read with rule 67A(3) of the Uniform Rules of Court.
A.D. OLIVIER
ACTING JUDGE
NORTHERN CAPE DIVISION
REPRESENTATIVES OF
PARTIES:
|
For
|
Adv.
o.i.o
BLOEMFONTEIN
c/o
KIMBERLEY
|
|
For
|
Adv.
o.i.o
KIMBERLEY
|
|
For
|
Mr.
The
KIMBERLEY
|
[1]
Local
Government: Municipal Finance Management Act,
Act 56 of 2003.
[2]
Treasure
Karoo Action Group and Another v Department of Mineral Resources and
Others
[2018] 3 All SA 896
(GP), par 10. Also see Skjelbreds Rederi A/S and Others v
Hartless (Pty) Ltd [1982] 1 All SA 1 (W) at 3-4.
[3]
Skjelbreds
Rederi,
supra.
Also see Pat
Hinde & Sons Motors (Brakpan)(Pty) Ltd v Carrim and
Others
1976 (4) SA 58 (T) at 63G-64A as well
as Shephard v Tuckers Land and
Development Corporation (Pty)Ltd (1) 1978
(1) SA 173 (W) at 177G-178A.
[4]
Rule
6(12)(b) of the Rules.
[5]
East
Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granite (Pty)
Ltd & Others [2012]
JOL
28244 (GSJ).
[6]
East
Rock Trading,
supra,
par 6.
[7]
Windsor
Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd and Others [2013]
ZAECMHC 14 (7
August 2013).
[8]
Windsor
Hotel,
supra,
par 10.
[9]
See
Magricor
(Pty) Ltd v Border Seed Distributors CC: In re: Border Seed
Distributors CC v
Magricor
(Pty) Ltd [2020] ZAECGHC 103, par 38.
[11]
Port
Nolloth Municipality v Xhalisa and Others; Luwalala and Others v
Port Nolloth Municipality
1991 (3) SA 98 (C).
[12]
Port
Nolloth Municipality,
supra
at
112D-F.
[13]
Somali
Association of South Africa and Others v Refugee Appeal Board and
Others [2021]
4 All
SA 731 (SCA).
[14]
Somali
Association of South Africa,
supra,
par 97.
[15]
Bayat
and Others v Hansa and Another
1955 (3) SA 547 (N).
[16]
Bayat,
supra
at
553D-E.
[17]
My
Vote Counts NPC v Speaker of the National Assembly and Others [2015]
ZACC 31 (30
September 2015), par 177
[18]
Basic
Conditions of Employment Act,
Act 75 of 1997.
[19]
See
Kritzinger
v Newcastle Local Transitional Council and Others 2000
(1) SA 345 (N) at 352C-
D.
[20]
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others
1974
(4) SA 362 (T).
[21]
Titty’s
Bar and Bottle Store,
supra
at
368H.
[22]
John
Grogan, Workplace
Law,
13th
Ed (2020) at 42.
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